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Conflict of Laws Issues in Family Law

2017-08-21T15:17:28Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = further}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:

*spouses have property in different provinces or countries,
*the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or
*the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.

The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.

==Children==

Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

===''Divorce Act'' orders===

When a court order about children has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 5 of the act. The courts of British Columbia will hear an application for an order different than the original order as long as:

#either spouse normally lives in this province, or
#both spouses agree that our courts should deal with the matter.

Since the ''Divorce Act'' applies to the whole of Canada, ''Divorce Act'' orders have effect throughout Canada. An order made under the ''Divorce Act'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

===Other orders made outside British Columbia===

When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k Children's Law Reform Act]'' of Ontario, or the laws of another country altogether, the order can be ''recognized'' by the courts of British Columbia under s. 75 of our ''[[Family Law Act]]''. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.

Under Division 7 of Part 4 of the ''[[Family Law Act]]'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in changing the orders of another court. Our court will usually hear an application for an order different than the original order if:

#the child normally lives in British Columbia, or
#the child is physically present in the province but will be at serious risk unless the original order is changed.

==Child support and spousal support==

Different rules apply when orders about support are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

===''Divorce Act'' orders===

When a court order about support has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the act. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a ''confirmation hearing'' under s. 19. If that court confirms the provisional order, the order will be changed. There's more information about this in the [[Making_Changes_to_Child_Support|Making Changes]] section of the chapter on [[Child Support]], under the heading "[[Making_Changes_to_Child_Support#Orders_made_outside_British_Columbia|Orders made outside British Columbia]]."

An order for child support or spousal support made under the ''[[Divorce Act]]'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

===Other orders made outside British Columbia===

Where a support order was made under the law of another province or territory, the order can be ''registered'' in the courts of British Columbia under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. Once this is done that newly "registered" order can be enforced as if it was a British Columbia order by the person to whom the payments are owed, the ''recipient'', under the ''[[Family Law Act]]'', or by the recipient and the Family Maintenance Enforcement Program under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.

The ''Interjurisdictional Support Orders Act'' also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the United Kingdom, the United States, Australia and New Zealand.

==Property and debt==

The ''[[Family Law Act]]'' is the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and very difficult to understand. You will almost certainly need to speak to a lawyer to figure them out.

Under s. 106 of the ''Family Law Act'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a property claim if:

*the person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'',
*the parties agree that the court should deal with the claim,
*either party was "habitually resident" in the province when the court proceeding started, or
*there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the ''[[Divorce Act]]'' has been started here.

If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:

*dividing property here to take into account the value of the property outside the province,
*making orders about respecting the care, management, or use of the property outside the province, and
*making orders about ownership of the property outside the province.

More information about how the ''Family Law Act'' deals with property outside of British Columbia is available in the [[Dividing_Property_%26_Debt_in_Family_Law_Matters|Dividing Property & Debt]] section of the chapter on [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]], under the heading "[[Dividing_Property_%26_Debt_in_Family_Law_Matters#Determining_jurisdiction|Determining jurisdiction]]".

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''

{{REVIEWED | reviewer = [[Mark Norton]], June 8, 2017}}

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{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Conflict of Laws Issues in Family Law

2017-08-21T15:17:07Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = further}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:

*spouses have property in different provinces or countries,
*the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or
*the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.

The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.

==Children==

Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

===''Divorce Act'' orders===

When a court order about children has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 5 of the ''Act''. The courts of British Columbia will hear an application for an order different than the original order as long as:

*either spouse normally lives in this province, or
*both spouses agree that our courts should deal with the matter.

Since the ''Divorce Act'' applies to the whole of Canada, ''Divorce Act'' orders have effect throughout Canada. An order made under the ''Divorce Act'' may be registered in any court in Canada under s. 20(3) of the ''Act'', and will be treated as an order of the court in which it is registered for enforcement purposes.

===Other orders made outside British Columbia===

When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k Children's Law Reform Act]'' of Ontario, or the laws of another country altogether, the order can be ''recognized'' by the courts of British Columbia under s. 75 of our ''[[Family Law Act]]''. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.

Under Division 7 of Part 4 of the ''[[Family Law Act]]'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in changing the orders of another court. Our court will usually hear an application for an order different than the original order if:

*the child normally lives in British Columbia, or
*the child is physically present in the province but will be at serious risk unless the original order is changed.

==Child support and spousal support==

Different rules apply when orders about support are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

===''Divorce Act'' orders===

When a court order about support has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the ''Act''. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a ''confirmation hearing'' under s. 19. If that court confirms the provisional order, the order will be changed. There's more information about this in the [[Making_Changes_to_Child_Support|Making Changes]] section of the chapter on [[Child Support]], under the heading "[[Making_Changes_to_Child_Support#Orders_made_outside_British_Columbia|Orders made outside British Columbia]]."

An order for child support or spousal support made under the ''[[Divorce Act]]'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

===Other orders made outside British Columbia===

Where a support order was made under the law of another province or territory, the order can be ''registered'' in the courts of British Columbia under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. Once this is done that newly "registered" order can be enforced as if it was a British Columbia order by the person to whom the payments are owed, the ''recipient'', under the ''[[Family Law Act]]'', or by the recipient and the Family Maintenance Enforcement Program under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.

The ''Interjurisdictional Support Orders Act'' also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the United Kingdom, the United States, Australia and New Zealand.

==Property and debt==

The ''[[Family Law Act]]'' is the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and very difficult to understand. You will almost certainly need to speak to a lawyer to figure them out.

Under s. 106 of the ''Family Law Act'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a property claim if:

*the person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'',
*the parties agree that the court should deal with the claim,
*either party was "habitually resident" in the province when the court proceeding started, or
*there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the ''[[Divorce Act]]'' has been started here.

If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:

*dividing property here to take into account the value of the property outside the province,
*making orders about respecting the care, management, or use of the property outside the province, and
*making orders about ownership of the property outside the province.

More information about how the ''Family Law Act'' deals with property outside of British Columbia is available in the [[Dividing_Property_%26_Debt_in_Family_Law_Matters|Dividing Property & Debt]] section of the chapter on [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]], under the heading "[[Dividing_Property_%26_Debt_in_Family_Law_Matters#Determining_jurisdiction|Determining jurisdiction]]".

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''

{{REVIEWED | reviewer = [[Mark Norton]], June 8, 2017}}

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Wills and Estates Issues in Family Law

2017-08-21T15:08:51Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = further}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a deceased person's estate is distributed when there is a valid will, how a deceased person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a deceased person's will. In family law, issues concerning a person's will most often arise when a couple have separated or are getting a divorce.

Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]'' (''WESA''). Section 37 sets out the basic requirements for a valid will:

<blockquote><tt>'''37''' (1) To be valid, a will must be</tt></blockquote>

<blockquote><blockquote><tt>(a) in writing,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) signed by 2 or more witnesses in the presence of the will-maker.</tt></blockquote></blockquote>

British Columbia courts have said that people are presumed to have a moral duty to provide for members of their immediate family. Under ''WESA'', spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate. This is often referred to as a variation of a will.

A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of ''WESA''. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, which is adjusted if the surviving spouse is not the other parent of the deceased's surviving children, and the remainder being split with any surviving children (sections 20 to 23 of ''WESA'').

If a person dies without a will, only people who qualify as the person's spouse and children can benefit from the provisions of ''WESA''. If the dead person had been married or in a marriage-like relationship which either party had terminated prior to the first person’s death, the former spouse can't make a claim under the act.

If a person dies with a will which gives a benefit to a spouse, but either party had terminated the relationship prior to the will-maker's death, the benefit is cancelled.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]''

===Links===
* [http://www.clicklaw.bc.ca/question/commonquestion/1157 Clicklaw Common Question "I want to contest or dispute a will. What can I do?"]
* [http://www.clicklaw.bc.ca/question/commonquestion/1045 Clicklaw Common Question "My common-law partner died. What legal issues do I need to know about?"]

{{REVIEWED | reviewer = [[Mark Norton]], June 8, 2017}}

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Wills and Estates Issues in Family Law

2017-08-21T15:08:32Z

Penny Goldsmith:

How Do I Change My Name after Marriage or Divorce?

2017-08-21T15:06:47Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = further}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}

Issues about names mostly come up when a child is born, when people enter into new relationships and when they separate, and, after separation, sometimes when someone wants to change the name of a child. In a family law context, people usually change their names when they marry and when they divorce. The provincial ''[http://canlii.ca/t/8481 Name Act]'' also allows people to change their names just because they feel like it, without the necessity of a marriage or a divorce.

This section provides a brief introduction to this subject and discusses the naming of children, changes of name on marriage and divorce, and changes of name under the ''Name Act''.

==Naming children==

The provincial Ministry of Health's [http://www.vs.gov.bc.ca Vital Statistics Agency] is the government organization that keeps track of people's births, their deaths, their wills, and their names. Under s. 3(1) of the ''[http://canlii.ca/t/84fk Vital Statistics Act]'', one or both of the parents must file a [http://www.vs.gov.bc.ca/forms/vsa404w_fill.pdf Registration of Live Birth] with the agency within 30 days of the birth of a child. This form must be completed before the child's birth certificate can be issued.

The form must state, among other things: the name of the mother; the name of the father (if known and acknowledged); the gender of the child; the date of birth; and, the name given to the child. Under s. 4 of the act, the child's surname can be:

*the name of either of the natural parents,
*the name of one of the parents,
*a combination of the parents' names, or
*another name entirely.

If one parent alone registers the birth with the agency, usually the mother, that parent has the final say on the child's name unless the father obtains a court order for a new surname.

A 2003 decision of the Supreme Court of Canada, ''[http://canlii.ca/t/1g6ph Trociuk v. British Columbia]'', 2003 1 S.C.R. 835, held that fathers should have a say in their children's names, contrary to the provisions of the ''Vital Statistics Act'' in force at the time. This decision also affects the right of unacknowledged fathers to be listed on their children's birth certificates. On June 4, 2004, the act was amended to comply with the court's decision, and s. 4.1 of the ''Vital Statistics Act'' now allows the courts of British Columbia to make an order changing a child's surname when it makes a declaration of paternity.

Now, while you're free to name your child as you wish, there are some limits. You've probably heard of Dweezel and Moon Unit Zappa, and you probably know people named Sunshine and Starlight. Under s. 9 of the act, the agency's chief executive officer has the authority to refuse to register the birth — and consequently to refuse to issue a birth certificate — for children whose names the chief executive officer believes:

<blockquote><tt>(a) might reasonably be expected to cause</tt></blockquote>
<blockquote><blockquote><tt>(i) mistake or confusion, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) embarrassment to the child or another person,</tt></blockquote></blockquote>
<blockquote><tt>(b) is sought for an improper purpose, or</tt></blockquote>
<blockquote><tt>(c) is, on any other ground, objectionable.</tt></blockquote>

While it seems that the chief executive officer rarely rejects a name, you should still be aware that this power exists.

==Changing names==

It is not illegal to use an alias in British Columbia, although you will not be allowed to obtain government identification or to make certain legal transactions, like the transfer of property, using an alias. An ''alias'' is a name other than your legal, registered name.

People often use aliases just because that's how people have come to know them, like a nickname, or because their real name is too hard for native English-speakers to pronounce or spell easily. Most people who want to legally change their names do so because they were adopted, married, or divorced. Others do so for purely personal reasons. I remember reading a change of name notice for a fellow with the unfortunate name of Donald Duck.

You can apply to have a legal, registered name that differs from your birth or married name under the provincial ''Name Act''. This is a purely paper process and a hearing before a judge won't be necessary in most cases. Section 4 of the act sets out who may apply for a change of name:

<blockquote><tt>(1) Subject to this section, a person who has attained the age of majority or, if the age of majority has not been attained, is a parent having custody of his or her child and who is domiciled in British Columbia for at least 3 months, or has resided in British Columbia for at least 3 months immediately before the date of the application, may, unless prohibited by this or another Act, change his or her name on complying with this Act.</tt></blockquote>
<blockquote><tt>(2) If the minister is satisfied that it is in the public interest to do so, the minister may waive the residency requirements of subsection (1).</tt></blockquote>
<blockquote><tt>(3) Subject to subsection (4), a person who is the parent of and who has custody of an unmarried minor child may, with the consent of the other parent of the child, apply to change the child's name, but, if the application is to change the child's surname to that of the applicant's spouse, the consent of the spouse is required.</tt></blockquote>
<blockquote><tt>(4) If a person applies to change the name of an unmarried minor child who has attained the age of 12 years, he or she must first obtain the consent in writing of the child.</tt></blockquote>
<blockquote><tt>(5) If a person whose consent is required under this Act</tt></blockquote>
<blockquote><blockquote><tt>(a) is deceased or mentally disordered or cannot after reasonable, diligent and adequate search be located, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is, in the opinion of the director, unreasonably withholding his or her consent,</tt></blockquote></blockquote>
<blockquote><tt>the applicant may, with the approval of the director, proceed with the application without the consent of that person.</tt></blockquote>
<blockquote><tt>(6) If, in the opinion of the director, exceptional circumstances make it unreasonable to seek the consent of a person as required under this Act, the applicant may, with the approval of the director, proceed with the application without the consent of that person.</tt></blockquote>

When your name has been legally changed, the chief executive officer of the Ministry of Health Services' Vital Statistics Agency is required to make a notation on your birth certificate and on the registration of any current marriage. After the notation has been made, any future birth, marriage, or death certificates will show the new name. A Certificate of Change of Name will be issued that will allow you to obtain new identification, such as drivers' licences or BC Identification cards, in the new name.

===Change of name on marriage===

Many people change their names when they marry. Out of custom, wives often take their husbands' surnames, but there's no requirement that they do so, and there's nothing stopping a husband from taking his wife's surname. The options are wide open for same sex couples.

====Choice of name====

On marriage, s. 3 of the ''Name Act'' allows a spouse to:

<blockquote><tt>(a) use the surname he or she had immediately before the marriage,</tt></blockquote>
<blockquote><tt>(b) use the surname he or she had at birth or by adoption, or</tt></blockquote>
<blockquote><tt>(c) use the surname of his or her spouse by marriage.</tt></blockquote>

This applies to both men and women, and to same sex and opposite sex couples, and no court application is required; the newly-married spouse simply starts using that name. To get identification in the new name, you will have to produce proof of your marriage (the government-issued marriage certificate) and proof of your old name (a driver's licence or BC ID).

The sort of marriage the act is referring to is a legal marriage solemnized by a marriage commissioner or licensed religious official; the rules about change of name on marriage do not apply to common-law relationships.

====Hyphenated names====

The ''Name Act'' does not deal with situations where spouses wish to take each other's surnames and use a hyphenated name, like Smith-Jones. Spouses who want to adopt a hyphenated name as their legal name will have to follow the ''Name Act'' process for obtaining a change of name, described below, to make their new name their registered, legal name.

On the other hand, the new hyphenated name can be used as an alias, the day-to-day name by which most people know you, without a formal change of name. It is not illegal to go by an alias in British Columbia. Note, however, that if you do not apply to have the new name registered as your legal name, you cannot use the alias for legal transactions, such as the transfer of property or obtaining a loan.

===Change of name on divorce===

Once an order for divorce or an order declaring the marriage to be a nullity has been made, a former spouse may begin using any legal name he or she had before marriage. No court application is necessary. Where identification was obtained in the married name or assets were purchased in the married name, a legal change of name will be required.

====Orders for change of name====

Where a spouse needs a legal change of name, the spouse may seek an order to this effect in the divorce proceeding and simply claim the change of name as part of what he or she is asking for in the Notice of Family Claim or Counterclaim.

An application for a change of name can also be dealt with in a separate proceeding altogether, usually by Petition and likely without an oral hearing. An application for a change of both given and last names may be dealt with by a hearing before a judge.

====Children's names====

An application for a change of name of the children of the marriage must be made with the consent of the other parent, even when the person making the application has custody of the children. The consent of the affected children must also be obtained where they are 12 or more years old.

===Change of name under the ''Name Act''===

If you don't qualify for an automatic change of name, you will have to follow the process outlined in the ''Name Act'' to change your name. The Ministry of Health's [http://www.vs.gov.bc.ca/name/howto.html Vital Statistics Agency] has a [http://www.vs.gov.bc.ca/forms/vsa529.pdf change of name package] that includes all the forms you will require and instructions on how to complete them. Although you don't have to run an ad in the newspaper to change your name, you will have to get your fingerprints taken and submit to a criminal records check. As well, a fee will be charged by the police department that takes your fingerprints.

The process is fairly straightforward and a hearing before a judge is usually not necessary. The steps for most people are as follows:

#get the change of name package from the Vital Statistics Agency,
#if you're seeking to also change the name of a child, you must obtain the consents of the other parent, the child (if the child is 12 or more years old), and your present spouse (if you are seeking to change the child's name to that of your spouse),
#gather proof of identity, like birth certificates, for everyone affected by the change of name (usually, yourself and any children),
#go to your local police detachment and submit to fingerprinting (you have to pay a fee for this service),
#the police will send in all the required information — the identification, the consents, your fingerprints, and so forth — to the agency, along with payment of the agency's fee, and
#once your name change has been registered, the fingerprints will be returned to the police for a criminal records check.

Once the agency receives all of this information with their fee, they will begin processing the request. (Bear in mind that the agency's chief executive officer has the authority to refuse to register objectionable names. This is discussed earlier in this section.) If all is well, the chief executive officer will make the required changes to the birth certificates of the people affected by the application and, if applicable, to any current marriage certificate, and will issue a Certificate of Change of Name.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/84fk Vital Statistics Act]''
* ''[http://canlii.ca/t/8481 Name Act]''

===Resources===

* [https://ebr.vs.gov.bc.ca/ Online Birth Registration]
* [http://www2.gov.bc.ca/assets/gov/health/forms/vital-statistics/vsa529.pdf Application for Change of Name]

===Links===

* [http://www2.gov.bc.ca/gov/content/life-events/ Vital Statistics Agency]
* [http://www2.gov.bc.ca/gov/content/life-events/legal-changes-of-name/legal-change-of-name-application Vital Statistics Agency: Legal Change of Name Application]
* [http://www.vs.gov.bc.ca/babynames/ Most Popular Baby Names in British Columbia]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

How Do I Change My Name after Marriage or Divorce?

2017-08-21T15:06:25Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = further}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}

Issues about names mostly come up when a child is born, when people enter into new relationships and when they separate, and, after separation, sometimes when someone wants to change the name of a child. In a family law context, people usually change their names when they marry and when they divorce. The provincial ''[http://canlii.ca/t/8481 Name Act]'' also allows people to change their names just because they feel like it, without the necessity of a marriage or a divorce.

This section provides a brief introduction to this subject and discusses the naming of children, changes of name on marriage and divorce, and changes of name under the ''Name Act''.

==Naming children==

The provincial Ministry of Health's [http://www.vs.gov.bc.ca Vital Statistics Agency] is the government organization that keeps track of people's births, their deaths, their wills, and their names. Under s. 3(1) of the ''[http://canlii.ca/t/84fk Vital Statistics Act]'', one or both of the parents must file a [http://www.vs.gov.bc.ca/forms/vsa404w_fill.pdf Registration of Live Birth] with the agency within 30 days of the birth of a child. This form must be completed before the child's birth certificate can be issued.

The form must state, among other things: the name of the mother; the name of the father (if known and acknowledged); the gender of the child; the date of birth; and, the name given to the child. Under s. 4 of the act, the child's surname can be:

*the name of either of the natural parents,
*the name of one of the parents,
*a combination of the parents' names, or
*another name entirely.

If one parent alone registers the birth with the agency, usually the mother, that parent has the final say on the child's name unless the father obtains a court order for a new surname.

A 2003 decision of the Supreme Court of Canada, ''[http://canlii.ca/t/1g6ph Trociuk v. British Columbia]'', 2003 1 S.C.R. 835, held that fathers should have a say in their children's names, contrary to the provisions of the ''Vital Statistics Act'' in force at the time. This decision also affects the right of unacknowledged fathers to be listed on their children's birth certificates. On June 4, 2004, the act was amended to comply with the court's decision, and s. 4.1 of the ''Vital Statistics Act'' now allows the courts of British Columbia to make an order changing a child's surname when it makes a declaration of paternity.

Now, while you're free to name your child as you wish, there are some limits. You've probably heard of Dweezel and Moon Unit Zappa, and you probably know people named Sunshine and Starlight. Under s. 9 of the ''Act'', the agency's chief executive officer has the authority to refuse to register the birth — and consequently to refuse to issue a birth certificate — for children whose names the chief executive officer believes:

<blockquote><tt>(a) might reasonably be expected to cause</tt></blockquote>
<blockquote><blockquote><tt>(i) mistake or confusion, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) embarrassment to the child or another person,</tt></blockquote></blockquote>
<blockquote><tt>(b) is sought for an improper purpose, or</tt></blockquote>
<blockquote><tt>(c) is, on any other ground, objectionable.</tt></blockquote>

While it seems that the chief executive officer rarely rejects a name, you should still be aware that this power exists.

==Changing names==

It is not illegal to use an ''alias'' in British Columbia, although you will not be allowed to obtain government identification or to make certain legal transactions, like the transfer of property, using an alias. An alias is a name other than your legal, registered name.

People often use aliases just because that's how people have come to know them, like a nickname, or because their real name is too hard for English-speakers to pronounce or spell easily. Most people who want to legally change their names do so because they were adopted, married, or divorced. Others do so for purely personal reasons. I remember reading a change of name notice for a fellow with the unfortunate name of Donald Duck.

You can apply to have a legal, registered name that differs from your birth or married name under the provincial ''Name Act''. This is a purely paper process and a hearing before a judge won't be necessary in most cases. Section 4 of the act sets out who may apply for a change of name:

<blockquote><tt>(1) Subject to this section, a person who has attained the age of majority or, if the age of majority has not been attained, is a parent having custody of his or her child and who is domiciled in British Columbia for at least 3 months, or has resided in British Columbia for at least 3 months immediately before the date of the application, may, unless prohibited by this or another Act, change his or her name on complying with this Act.</tt></blockquote>
<blockquote><tt>(2) If the minister is satisfied that it is in the public interest to do so, the minister may waive the residency requirements of subsection (1).</tt></blockquote>
<blockquote><tt>(3) Subject to subsection (4), a person who is the parent of and who has custody of an unmarried minor child may, with the consent of the other parent of the child, apply to change the child's name, but, if the application is to change the child's surname to that of the applicant's spouse, the consent of the spouse is required.</tt></blockquote>
<blockquote><tt>(4) If a person applies to change the name of an unmarried minor child who has attained the age of 12 years, he or she must first obtain the consent in writing of the child.</tt></blockquote>
<blockquote><tt>(5) If a person whose consent is required under this Act</tt></blockquote>
<blockquote><blockquote><tt>(a) is deceased or mentally disordered or cannot after reasonable, diligent and adequate search be located, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is, in the opinion of the director, unreasonably withholding his or her consent,</tt></blockquote></blockquote>
<blockquote><tt>the applicant may, with the approval of the director, proceed with the application without the consent of that person.</tt></blockquote>
<blockquote><tt>(6) If, in the opinion of the director, exceptional circumstances make it unreasonable to seek the consent of a person as required under this Act, the applicant may, with the approval of the director, proceed with the application without the consent of that person.</tt></blockquote>

When your name has been legally changed, the chief executive officer of the Ministry of Health Services' Vital Statistics Agency is required to make a notation on your birth certificate and on the registration of any current marriage. After the notation has been made, any future birth, marriage, or death certificates will show the new name. A Certificate of Change of Name will be issued that will allow you to obtain new identification, such as drivers' licences or BC Identification cards, in the new name.

===Change of name on marriage===

Many people change their names when they marry. Out of custom, wives often take their husbands' surnames, but there's no requirement that they do so, and there's nothing stopping a husband from taking his wife's surname. The options are wide open for same sex couples.

====Choice of name====

On marriage, s. 3 of the ''Name Act'' allows a spouse to:

<blockquote><tt>(a) use the surname he or she had immediately before the marriage,</tt></blockquote>
<blockquote><tt>(b) use the surname he or she had at birth or by adoption, or</tt></blockquote>
<blockquote><tt>(c) use the surname of his or her spouse by marriage.</tt></blockquote>

This applies to both men and women, and to same sex and opposite sex couples, and no court application is required; the newly-married spouse simply starts using that name. To get identification in the new name, you will have to produce proof of your marriage (the government-issued marriage certificate) and proof of your old name (a driver's licence or BC ID).

The sort of marriage the act is referring to is a legal marriage solemnized by a marriage commissioner or licensed religious official; the rules about change of name on marriage do not apply to common-law relationships.

====Hyphenated names====

The ''Name Act'' does not deal with situations where spouses wish to take each other's surnames and use a hyphenated name, like Smith-Jones. Spouses who want to adopt a hyphenated name as their legal name will have to follow the ''Name Act'' process for obtaining a change of name, described below, to make their new name their registered, legal name.

On the other hand, the new hyphenated name can be used as an alias, the day-to-day name by which most people know you, without a formal change of name. It is not illegal to go by an alias in British Columbia. Note, however, that if you do not apply to have the new name registered as your legal name, you cannot use the alias for legal transactions, such as the transfer of property or obtaining a loan.

===Change of name on divorce===

Once an order for divorce or an order declaring the marriage to be a nullity has been made, a former spouse may begin using any legal name they had before marriage. No court application is necessary. Where identification was obtained in the married name or assets were purchased in the married name, a legal change of name will be required.

====Orders for change of name====

Where a spouse needs a legal change of name, the spouse may seek an order to this effect in the divorce proceeding and simply claim the change of name as part of what they are asking for in the Notice of Family Claim or Counterclaim.

An application for a change of name can also be dealt with in a separate proceeding altogether, usually by Petition and likely without an oral hearing. An application for a change of both given and last names may be dealt with by a hearing before a judge.

====Children's names====

An application for a change of name of the children of the marriage must be made with the consent of the other parent, even when the person making the application has custody of the children. The consent of the affected children must also be obtained where they are 12 or more years old.

===Change of name under the ''Name Act''===

If you don't qualify for an automatic change of name, you will have to follow the process outlined in the ''Name Act'' to change your name. The Ministry of Health's [http://www.vs.gov.bc.ca/name/howto.html Vital Statistics Agency] has a [http://www.vs.gov.bc.ca/forms/vsa529.pdf change of name package] that includes all the forms you will require and instructions on how to complete them. Although you don't have to run an ad in the newspaper to change your name, you will have to get your fingerprints taken and submit to a criminal records check. As well, a fee will be charged by the police department that takes your fingerprints.

The process is fairly straightforward and a hearing before a judge is usually not necessary. The steps for most people are as follows:

#get the change of name package from the Vital Statistics Agency,
#if you're seeking to also change the name of a child, you must obtain the consents of the other parent, the child (if the child is 12 or more years old), and your present spouse (if you are seeking to change the child's name to that of your spouse),
#gather proof of identity, like birth certificates, for everyone affected by the change of name (usually, yourself and any children),
#go to your local police detachment and submit to fingerprinting (you have to pay a fee for this service),
#the police will send in all the required information — the identification, the consents, your fingerprints, and so forth — to the agency, along with payment of the agency's fee, and
#once your name change has been registered, the fingerprints will be returned to the police for a criminal records check.

Once the agency receives all of this information with their fee, they will begin processing the request. (Bear in mind that the agency's chief executive officer has the authority to refuse to register objectionable names. This is discussed earlier in this section.) If all is well, the chief executive officer will make the required changes to the birth certificates of the people affected by the application and, if applicable, to any current marriage certificate, and will issue a Certificate of Change of Name.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/84fk Vital Statistics Act]''
* ''[http://canlii.ca/t/8481 Name Act]''

===Resources===

* [https://ebr.vs.gov.bc.ca/ Online Birth Registration]
* [http://www2.gov.bc.ca/assets/gov/health/forms/vital-statistics/vsa529.pdf Application for Change of Name]

===Links===

* [http://www2.gov.bc.ca/gov/content/life-events/ Vital Statistics Agency]
* [http://www2.gov.bc.ca/gov/content/life-events/legal-changes-of-name/legal-change-of-name-application Vital Statistics Agency: Legal Change of Name Application]
* [http://www.vs.gov.bc.ca/babynames/ Most Popular Baby Names in British Columbia]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Same Sex Relationships and Issues Affecting Transgender and Transsexual People

2017-08-21T14:50:33Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = further}}{{JPBOFL Editor Badge
|ChapterEditors = [[Todd Bell]]
}}

==Same sex relationships==

Legislated discrimination in British Columbia between opposite- and same sex relationships has steadily been erased in the context of family law. To quote [http://www.barbarafindlay.com/ barbara findlay QC], a tireless advocate for queer rights, from a speech to the [http://www.cba.org/bc/home/main/ Canadian Bar Association British Columbia] a number of years ago:

<blockquote>"Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop."</blockquote>

She is entirely correct. As far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the equality rights of gays and lesbians, and our provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' is one of the few in Canada that permit adoption by same sex couples.

Gays and lesbians are just as entitled to pursue claims relating to the care of children, child support, spousal support, and the division of property as straight people are. Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.

How does family law intersect with gay and lesbian relationships? In every way. There is no relief known to family law of which straight couples can avail themselves that same sex couples cannot.

===Marriage===

As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', same sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors under a certain age. See the [[Marriage & Married Spouses]] section of the [[Family Relationships]] chapter for more information about the capacity to marry, valid marriages and invalid marriages.

It's not just Canadian couples who can marry. Anyone from anywhere can get married in Canada, as long as they meet the Canadian criteria for a valid marriage. However, while a Canadian marriage is certainly legal in Canada, it may not be recognized as a valid marriage at home. If a couple's home country does not recognize same sex marriages as valid marriages, the Canadian marriage is unlikely to be valid in that country.

===Children===

Whether the battle over a child is between two parents of the same gender or between parents of opposite genders or families of more than two parents or guardians, the legal test that the parents and the court should consider is the same: what arrangements are in the child's best interests? That's the court's only concern. The courts have been crystal clear that the sexual orientation of the child's parents is only one of many factors to be considered and is often a non-issue. This is what a few judges have had to say:

''[http://canlii.ca/t/1f6rk Anger v. Anger]'', 1998 CanLII 4490 (BCSC):

<blockquote>Mother sought an order that the children live primarily with her. Father opposed application as he found mother's sexual orientation "repugnant on religious and moral grounds." Court finding father doing everything he could to cut mother out of children's lives, and accepting psychologist's recommendation that children should live with mother. Mother's application allowed. No weight given to mother's sexual orientation.</blockquote>

''Murphy v. Laurence'', [2002] O.J. No. 1368 (ONSC):

<blockquote>Applications by biological mother and mother's lesbian partner for custody and child support. Parties had three year unmarried relationship in which mother remained at home and partner worked outside the home. Both acted as parents to child, and following separation, partner exercised liberal access to child. Child later, by agreement, going to live mostly with partner. Court finding child to have benefited from care of both women, and ordering joint custody with primary residence of child to mother based on blood tie. Negligible access given to father in light of history of disinterest in child. No weight given to mother's sexual orientation.</blockquote>
<blockquote>"The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same sex parents seeking custody are no different than opposite-sex parents seeking custody."</blockquote>

''[http://canlii.ca/t/1w5d8 Bubis v. Jones]'', 2000 CanLII 22571 (ONSC):

<blockquote>Application by mother for vary order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same sex preference of parent merely one of many factors to be considered, and in light of positive psychologist's report and change in mother's employment and stability, giving custody to mother.</blockquote>
<blockquote>"Homophobia is being replaced by reason and bigotry by tolerance — but not completely, since history tells us that, in matters of this nature, there will always be pockets of prejudice."</blockquote>
<blockquote>"There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents."</blockquote>

===Child support===

Regardless of your sexual orientation or identity, if you qualify as a ''parent'' for the purposes of the ''[[Family Law Act]]'', or the child qualifies as a ''child of the marriage'' for the purposes of the ''[[Divorce Act]]'', child support will be payable by the person who has the child for the least amount of time to the person who has the child for the most amount of time. Child support will be payable in the amount specified under the [[Child Support Guidelines]] unless the parent paying support, the ''payor'', fits into one of a very narrow range of exceptions:

*payment of support in the usual amount would be too much and cause "undue hardship" (the recipient of support may ask for an increased amount of support if payment of the usual amount would be too little and also cause undue hardship),
*the payor is responsible for the care and control of the child for more than 40% of the child's time,
*the child is 19 or older,
*the payor earns more than $150,000 per year, and payment of the table amount would result in an unfair windfall to the recipient, or
*other persons are also under a legal obligation to care for the child.

The only one of these exceptions that has any special relevance to same sex couples is the last: where another person is also under an obligation to support the child. Assuming there is another parent in the picture apart from the other party to the relationship, that the other parent will also be obliged to contribute to the support of the child. In ''Murphy v. Laurence and Rogers'', the biological mother of a child was entitled to receive child support from both her former lesbian partner and the child's father.

===Divorce===

The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders to qualify for a divorce order. Oh happy day.

==Issues affecting transgendered and transsexual people==

To be brutally frank, the jury is still out on how family law impacts on the trans community. Right now, the laws have slipped into a comfortable understanding of "the same or opposite genders" and only accommodates people on the spectrum in between with difficulty. While bisexuality is as close to a non-issue in this context as there can be, transgendered and transsexual people may well encounter difficulty in dealing with family law matters. This discussion offers only a gloss on some of the issues affecting this community.

If you have a family law problem and your orientation, gender or identity becomes an issue, contact a lawyer known to be sympathetic or activist on the issue, such as barbara findlay or another lawyer she can refer you to.

===Marriage===

As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', gender is irrelevant in determining the ability of a couple to marry.

===Children===

Those who have discovered another self-identity during a relationship may find their new identities hotly at issue in the event that the living arrangements for any children must be decided in court. The problem here is that while shows like Will and Grace, The Birdcage and The L Word have made homosexuality something commonly understood and empathized with, nothing similar has popularized and explained the experience of the trans community.

It can be very difficult for people, including ex-partners, to understand trans issues, and this problem is especially acute in courtroom discussions about the care and control of children. Often the most important task is to demystify the person's self-identity and explain why his or her self-identity has no impact at all on his or her ability to parent, nor on the expected outcomes for the children.

On the bright side, the single reported case I was able to find in researching transgendered and transsexual family law issues dealt fairly positively with the subject. (This research is a few years old.) In ''[http://canlii.ca/t/fvzvc Forrester v. Saliba]'', 2000 CanLII 28722 ONCJ, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transitioning to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transitioning process. Here are some interesting excerpts from the decision:

<blockquote>"I indicated at the beginning of the trial to both parties and their counsel that the [father's] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination."</blockquote>
<blockquote>"The entire focus of this trial has been upon the consequences of the [father's] transgendering, the mental health issues that have arisen as a result of the [father's] transgendering process, and the [mother's] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. ... It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being."</blockquote>

The mother's application was dismissed.

In a very recent case here in British Columbia ''[http://canlii.ca/t/gpphw K. (N.) v H.(A.)]'', 2016 BCSC 744, the larger dispute centered around the parents’ disagreement over gender transition therapy involving their 11 year old child. The mother supported the transition whereas the father did not. At issue before Justice Skolrood in that proceeding was whether or not the child was entitled to an independent voice in the litigation. The court held that this was appropriate, saying:

<blockquote>39 I am satisfied that J.K. should be permitted to participate directly in this proceeding. To my mind, this case is different from the many family law cases that come before the courts in which the views of the child are sought on issues relating to guardianship and parenting time, and where those views are typically presented through third party reports.</blockquote>

<blockquote>40 I agree with Ms. findlay's characterization that this case is really about J.K. and his role in determining his own future. In my view, these issues cannot be properly considered without J.K.’s direct participation, nor would it be fair to J.K. for the court to attempt to do so.</blockquote>

===Child support===

Trans issues have no impact at all on the determination of child support. If you are a parent or qualify as a stepparent within the meaning of the applicable legislation, child support will be payable or receivable. End of story.

===Spousal support===

The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the trans issue, be prepared to face some resistance. The problem will lie in establishing the legitimacy of the financial dependency arising from the trans issue; in other words, the problem will lie in convincing the judge dealing with the matter, if the matter has to go to court, that the issue you are dealing with isn't one of choice or a voluntary financial dependence.

===Divorce===

The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders, whether at the end of their marriage or at its beginning, to qualify for a divorce order.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7w02 Civil Marriage Act]''

===Links===

*[http://www.clicklaw.bc.ca/global/search?k=trans Clicklaw resources on trans issues]

{{REVIEWED | reviewer = [[Todd Bell]], March 20, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Same Sex Relationships and Issues Affecting Transgender and Transsexual People

2017-08-21T14:50:06Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = further}}{{JPBOFL Editor Badge
|ChapterEditors = [[Todd Bell]]
}}

==Same sex relationships==

Legislated discrimination in British Columbia between opposite- and same sex relationships has steadily been erased in the context of family law. To quote [http://www.barbarafindlay.com/ barbara findlay QC], a tireless advocate for queer rights, from a speech to the [http://www.cba.org/bc/home/main/ Canadian Bar Association British Columbia] a number of years ago:

<blockquote>"Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop."</blockquote>

She is entirely correct. As far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the equality rights of gays and lesbians, and our provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' is one of the few in Canada that permit adoption by same sex couples.

Gays and lesbians are just as entitled to pursue claims relating to the care of children, child support, spousal support, and the division of property as straight people are. Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.

How does family law intersect with gay and lesbian relationships? In every way. There is no relief known to family law of which straight couples can avail themselves that same sex couples cannot.

===Marriage===

As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', same sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors under a certain age. See the [[Marriage & Married Spouses]] section of the [[Family Relationships]] chapter for more information about the capacity to marry, valid marriages and invalid marriages.

It's not just Canadian couples who can marry. Anyone from anywhere can get married in Canada, as long as they meet the Canadian criteria for a valid marriage. However, while a Canadian marriage is certainly legal in Canada, it may not be recognized as a valid marriage at home. If a couple's home country does not recognize same sex marriages as valid marriages, the Canadian marriage is unlikely to be valid in that country.

===Children===

Whether the battle over a child is between two parents of the same gender or between parents of opposite genders or families of more than two parents or guardians, the legal test that the parents and the court should consider is the same: what arrangements are in the child's best interests? That's the court's only concern. The courts have been crystal clear that the sexual orientation of the child's parents is only one of many factors to be considered and is often a non-issue. This is what a few judges have had to say:

''[http://canlii.ca/t/1f6rk Anger v. Anger]'', 1998 CanLII 4490 (BCSC):

<blockquote>Mother sought an order that the children live primarily with her. Father opposed application as he found mother's sexual orientation "repugnant on religious and moral grounds." Court finding father doing everything he could to cut mother out of children's lives, and accepting psychologist's recommendation that children should live with mother. Mother's application allowed. No weight given to mother's sexual orientation.</blockquote>

''Murphy v. Laurence'', [2002] O.J. No. 1368 (ONSC):

<blockquote>Applications by biological mother and mother's lesbian partner for custody and child support. Parties had three year unmarried relationship in which mother remained at home and partner worked outside the home. Both acted as parents to child, and following separation, partner exercised liberal access to child. Child later, by agreement, going to live mostly with partner. Court finding child to have benefited from care of both women, and ordering joint custody with primary residence of child to mother based on blood tie. Negligible access given to father in light of history of disinterest in child. No weight given to mother's sexual orientation.</blockquote>
<blockquote>"The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same sex parents seeking custody are no different than opposite-sex parents seeking custody."</blockquote>

''[http://canlii.ca/t/1w5d8 Bubis v. Jones]'', 2000 CanLII 22571 (ONSC):

<blockquote>Application by mother for vary order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same sex preference of parent merely one of many factors to be considered, and in light of positive psychologist's report and change in mother's employment and stability, giving custody to mother.</blockquote>
<blockquote>"Homophobia is being replaced by reason and bigotry by tolerance — but not completely, since history tells us that, in matters of this nature, there will always be pockets of prejudice."</blockquote>
<blockquote>"There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents."</blockquote>

===Child support===

Regardless of your sexual orientation or identity, if you qualify as a ''parent'' for the purposes of the ''[[Family Law Act]]'', or the child qualifies as a ''child of the marriage'' for the purposes of the ''[[Divorce Act]]'', child support will be payable by the person who has the child for the least amount of time to the person who has the child for the most amount of time. Child support will be payable in the amount specified under the [[Child Support Guidelines]] unless the parent paying support, the ''payor'', fits into one of a very narrow range of exceptions:

*payment of support in the usual amount would be too much and cause "undue hardship" (the recipient of support may ask for an increased amount of support if payment of the usual amount would be too little and also cause undue hardship),
*the payor is responsible for the care and control of the child for more than 40% of the child's time,
*the child is 19 or older,
*the payor earns more than $150,000 per year, and payment of the table amount would result in an unfair windfall to the recipient, or
*other persons are also under a legal obligation to care for the child.

The only one of these exceptions that has any special relevance to same sex couples is the last: where another person is also under an obligation to support the child. Assuming there is another parent in the picture apart from the other party to the relationship, that the other parent will also be obliged to contribute to the support of the child. In ''Murphy v. Laurence and Rogers'', the biological mother of a child was entitled to receive child support from both her former lesbian partner and the child's father.

===Divorce===

The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders to qualify for a divorce order. Oh happy day.

==Issues affecting transgender and transsexual people==

To be brutally frank, the jury is still out on how family law impacts on the trans community. Right now, the laws have slipped into a comfortable understanding of ''the same or opposite genders'' and only accommodates people on the spectrum in between with difficulty. While bisexuality is as close to a non-issue in this context as there can be, transgender and transsexual people may well encounter difficulty in dealing with family law matters. This discussion offers only a gloss on some of the issues affecting this community.

If you have a family law problem and your orientation, gender or identity becomes an issue, contact a lawyer known to be sympathetic or activist on the issue, such as barbara findlay or another lawyer she can refer you to.

===Marriage===

As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', gender is irrelevant in determining the ability of a couple to marry.

===Children===

Those who have discovered another self-identity during a relationship may find their new identities hotly at issue in the event that the living arrangements for any children must be decided in court. The problem here is that while shows like "Will and Grace", "The Birdcage" and "The L Word" have made homosexuality something commonly understood and empathized with, nothing similar has popularized and explained the experience of the transgender community.

It can be very difficult for people, including ex-partners, to understand transgender issues, and this problem is especially acute in courtroom discussions about the care and control of children. Often the most important task is to demystify the person's self-identity and explain why their self-identity has no impact at all on their ability to parent, nor on the expected outcomes for the children.

On the bright side, the single reported case I was able to find in researching transgender and transsexual family law issues dealt fairly positively with the subject. (This research is a few years old.) In ''[http://canlii.ca/t/fvzvc Forrester v. Saliba]'', 2000 CanLII 28722 ONCJ, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transitioning to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transitioning process. Here are some interesting excerpts from the decision:

<blockquote>"I indicated at the beginning of the trial to both parties and their counsel that the [father's] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination."</blockquote>
<blockquote>"The entire focus of this trial has been upon the consequences of the [father's] transgendering, the mental health issues that have arisen as a result of the [father's] transgendering process, and the [mother's] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. ... It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being."</blockquote>

The mother's application was dismissed.

In a very recent case here in British Columbia ''[http://canlii.ca/t/gpphw K. (N.) v H.(A.)]'', 2016 BCSC 744, the larger dispute centered around the parents’ disagreement over gender transition therapy involving their 11 year old child. The mother supported the transition whereas the father did not. At issue before Justice Skolrood in that proceeding was whether or not the child was entitled to an independent voice in the litigation. The court held that this was appropriate, saying:

<blockquote>39 I am satisfied that J.K. should be permitted to participate directly in this proceeding. To my mind, this case is different from the many family law cases that come before the courts in which the views of the child are sought on issues relating to guardianship and parenting time, and where those views are typically presented through third party reports.</blockquote>

<blockquote>40 I agree with Ms. findlay's characterization that this case is really about J.K. and his role in determining his own future. In my view, these issues cannot be properly considered without J.K.’s direct participation, nor would it be fair to J.K. for the court to attempt to do so.</blockquote>

===Child support===

Transgender issues have no impact at all on the determination of child support. If you are a parent or qualify as a stepparent within the meaning of the applicable legislation, child support will be payable or receivable. End of story.

===Spousal support===

The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the transgender issue, be prepared to face some resistance. The problem will lie in establishing the legitimacy of the financial dependency arising from the transgender issue; in other words, the problem will lie in convincing the judge dealing with the matter, if the matter has to go to court, that the issue you are dealing with isn't one of choice or a voluntary financial dependence.

===Divorce===

The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders, whether at the end of their marriage or at its beginning, to qualify for a divorce order.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7w02 Civil Marriage Act]''

===Links===

*[http://www.clicklaw.bc.ca/global/search?k=trans Clicklaw resources on trans issues]

{{REVIEWED | reviewer = [[Todd Bell]], March 20, 2017}}

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Newcomers to Canada and Family Law

2017-08-21T14:37:10Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = further}}{{JPBOFL Editor Badge
|ChapterEditors = [[Taruna Agrawal]]
}}
==Immigration issues==

Problems involving immigration usually crop up because one spouse has sponsored the other spouse into Canada, or a spouse is concerned about deportation once the relationship ends. The discussion that follows provides only an overview of some of these problems. If you have an immigration concern, you really should speak to a lawyer who practises this kind of law.

===Permanent resident spouses===

In October 2012, the Government of Canada introduced a new rule that sponsored spouses are under a conditional permanent residency status for the first two years (with some exceptions). This condition was removed on April 28, 2017. In April 2017, the government introduced a rule that sponsored spouses or partners of Canadian citizens and permanent residents no longer need to live with their sponsor in order to keep their permanent resident status. The government notice was [http://www.cic.gc.ca/english/department/media/notices/2017-04-28.asp published online].

This means that if your sponsor is abusive, you no longer need to worry about the threat of deportation or potential loss of status. Your residency status is no longer contingent on the length of the relationship. That being said, government of Canada will still continue to investigate complaints about marriage fraud (that is, if someone marries a Canadian citizen or permanent residence for the sole purpose of gaining entry into Canada)

The change applies to those who were under investigation under the previous rule. That is, if you left your spouse within two years of receiving your permanent resident status and the government of Canada was investigating you under the previous conditional permanent residency rule, they will no longer continue that investigation.

No matter what, your spouse may still remain responsible for supporting you and your children. If you are married, you will also remain entitled to claim a share in the family assets.

Although your spouse still has an obligation to support you as a sponsor, you will not lose your permanent resident status if you have to apply for welfare, although you will be expected to try to get support from your spouse. If your relationship ended because of abuse, you may not have to try to get support from your spouse. Speak to your caseworker or lawyer right away.

===Non-resident spouses===

If you do not have permanent resident status, you must seek legal advice and help right away, since the breakdown of your relationship with your sponsor may affect your ability to remain in Canada (if that is in fact what you would like to do). There are a number of agencies that help immigrants and refugees. Seek them out immediately.

===Sponsoring spouses===

If you have sponsored your spouse into Canada, you have certain obligations to continue to provide for your spouse's needs and the needs of any dependent children. These responsibilities are for a fixed amount of time, and you will have promised to support your spouse when you signed the immigration forms.

You have these responsibilities in addition to your responsibilities under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. A 2004 case of the Supreme Court, ''[http://canlii.ca/t/1q1m5 Aujla v. Aujla]'', 2004 BCSC 1566 held that a sponsor's obligations under a sponsorship agreement were obligations between the sponsor and the federal government, separate from the sponsor's obligation to pay spousal support under those acts.

If you are a sponsor and your relationship has ended, contact an immigration lawyer right away to find out exactly what your rights and obligations are.

==Resources and links==
===Legislation===
* ''[http://canlii.ca/t/7xsp Immigration and Refugee Protection Regulations]'', SOR/2002-227

===Resources===
* [http://www.clicklaw.bc.ca/question/commonquestion/1062 Clicklaw Common Question: A friend was sponsored to come to Canada but the sponsor left her. What can she do?]
* [http://www.amssa.org/resources/immigrants/settlement-service-provider-directory/ AMSSA Settlement Service Provider Directory]

===Links===
*[http://www.clicklaw.bc.ca/resource/1073 Legal Services Society booklet, Sponsorship Breakdown]

{{REVIEWED | reviewer = [[Taruna Agrawal]], March 13, 2017}}

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Newcomers to Canada and Family Law

2017-08-21T14:36:35Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = further}}{{JPBOFL Editor Badge
|ChapterEditors = [[Taruna Agrawal]]
}}
==Immigration issues==

Problems involving immigration usually crop up because one spouse has sponsored the other spouse into Canada, or a spouse is concerned about deportation once the relationship ends. The discussion that follows provides only an overview of some of these problems. If you have an immigration concern, you really should speak to a lawyer who practises this kind of law.

===Permanent resident spouses===

In October 2012, the Government of Canada introduced a new rule that sponsored spouses are under a conditional permanent residency status for the first two years (with some exceptions). This condition was removed on April 28, 2017. In April 2017, the government introduced a rule that sponsored spouses or partners of Canadian citizens and permanent residents no longer need to live with their sponsor in order to keep their permanent resident status. The government notice was [http://www.cic.gc.ca/english/department/media/notices/2017-04-28.asp published online].

This means that if your sponsor is abusive, you no longer need to worry about the threat of deportation or potential loss of status. Your residency status is no longer contingent on the length of the relationship. That being said, government of Canada will still continue to investigate complaints about marriage fraud (that is, if someone marries a Canadian citizen or permanent residence for the sole purpose of gaining entry into Canada).

The change applies to those who were under investigation under the previous rule. That is, if you left your spouse within two years of receiving your permanent resident status and the government of Canada was investigating you under the previous conditional permanent residency rule, they will no longer continue that investigation.

No matter what, your spouse may still remain responsible for supporting you and your children. If you are married, you will also remain entitled to claim a share in the family assets.

Although your spouse still has an obligation to support you as a sponsor, you will not lose your permanent resident status if you have to apply for welfare, although you will be expected to try to get support from your spouse. If your relationship ended because of abuse, you may not have to try to get support from your spouse. Speak to your caseworker or lawyer right away.

===Non-resident spouses===

If you do not have permanent resident status, you must seek legal advice and help right away, since the breakdown of your relationship with your sponsor may affect your ability to remain in Canada (if that is in fact what you would like to do). There are a number of agencies that help immigrants and refugees. Seek them out immediately.

===Sponsoring spouses===

If you have sponsored your spouse into Canada, you have certain obligations to continue to provide for your spouse's needs and the needs of any dependent children. These responsibilities are for a fixed amount of time, and you will have promised to support your spouse when you signed the immigration forms.

You have these responsibilities in addition to your responsibilities under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. A 2004 case of the Supreme Court, ''[http://canlii.ca/t/1q1m5 Aujla v. Aujla]'', 2004 BCSC 1566 held that a sponsor's obligations under a sponsorship agreement were obligations between the sponsor and the federal government, separate from the sponsor's obligation to pay spousal support under those ''Acts''.

If you are a sponsor and your relationship has ended, contact an immigration lawyer right away to find out exactly what your rights and obligations are.

==Resources and links==
===Legislation===
* ''[http://canlii.ca/t/7xsp Immigration and Refugee Protection Regulations]'', SOR/2002-227

===Resources===
* [http://www.clicklaw.bc.ca/question/commonquestion/1062 Clicklaw Common Question: A friend was sponsored to come to Canada but the sponsor left her. What can she do?]
* [http://www.amssa.org/resources/immigrants/settlement-service-provider-directory/ AMSSA Settlement Service Provider Directory]

===Links===
*[http://www.clicklaw.bc.ca/resource/1073 Legal Services Society booklet, Sponsorship Breakdown]

{{REVIEWED | reviewer = [[Taruna Agrawal]], March 13, 2017}}

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Indigenous Families

2017-08-21T14:33:58Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = further}}{{JPBOFL Editor Badge
|ChapterEditors = [[Arlene Henry | Arlene Henry, QC]] and [[Rhaea Bailey]]
}}
{{Clicklawbadge
|resourcetype = many resources on
|link = [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Aboriginal law topics]
}}Aboriginal people who are dealing with a family law problem may face some particular issues. Some of them involve cultural concerns while others stem from the federal government's ''[http://canlii.ca/t/7vhk Indian Act]''. This section addresses these issues briefly. However, for more complete information I strongly encourage you to consult with a family law lawyer who has expertise in Aboriginal legal issues.

This section look at issues specific to Aboriginal people that relate to the care and control of children, calculating the amount of child and spousal support payments, and dividing family property and family debt.

==The care of children==

All of the usual factors that govern the court's consideration of issues involving the care and control of children apply to the care and control of Aboriginal children, whether the child's ancestry comes from one parent or from both. In addition to the usual factors, however, the court will also look at a few other issues related to the child's Aboriginal heritage.

===Custody under the ''Divorce Act''===

In addition to the usual factors governing an award of child custody under s. 16 of the ''[[Divorce Act]]'', the court must also take into consideration a child's Aboriginal heritage when making a decision about custody. This is not expressly set out anywhere in the legislation, but past cases have decided that a child's Aboriginal heritage should be considered as part of the general "best interests of the child" test.

This principle was established in British Columbia by ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761, a decision of the Supreme Court of Canada. In its decision, the court said that:

<blockquote>"... the trial judge had given careful attention to the aboriginal ancestry of [the child], together with all the other factors relevant to [the child's] best interests, and that there was no error in his decision ..."</blockquote>

In another case, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada commented that:

<blockquote>"... racial identity is but one factor that may be considered in determining personal identity; the relevancy of this factor depends on the context. ... All factors must be considered pragmatically, as different situations and different philosophies require an individual analysis on the basis of reliable evidence."</blockquote>

===Guardianship under the ''Family Law Act''===

In addition to the usual rules dealing with guardianship under the ''[[Family Law Act]]'', members of Canada's First Nations are subject to an additional and unwelcome burden under the federal ''[http://canlii.ca/t/7vhk Indian Act]'', which allows the Minister of Aboriginal Affairs and Northern Development to appoint a person to be the guardian of the child. You should expect that this authority will only be exercised when both parents die without leaving a will that passes guardianship to some other person, or when there are serious concerns about the parents' ability to properly care for the child.

Where there is an application for guardianship of a treaty First Nation child in a family law court proceeding, under ss. 208 and 209 of the ''[[Family Law Act]]'':

#the First Nation government must be served with notice of the application,
#the First Nation government has standing in the court proceeding, and
#the court must consider the laws and customs of the First Nation in making its decision.

Section 208 applies to Nisga'a children; s. 209 deals with other treaty First Nation children and says this:

<blockquote><tt>(1) If an application for guardianship is made respecting a treaty first nation child and the final agreement of the treaty first nation to which the child belongs provides for it, the treaty first nation</tt></blockquote>
<blockquote><blockquote><tt>(a) must be served with notice of the proceeding, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) has standing in the proceeding.</tt></blockquote></blockquote>
<blockquote><tt>(2) In a proceeding to which subsection (1) applies, the court must consider, in addition to any other matters it is required by law to consider and subject to any limits or conditions set out in the final agreement, any evidence or representations respecting the laws and customs of the treaty first nation.</tt></blockquote>

Under s. 29.1 of the provincial ''[http://canlii.ca/t/844q Interpretation Act]'', the present treaty First Nations are the Tsawwassen First Nation and the Maa-nulth First Nations.

Remember that the only time an application must be made for guardianship is where a person, including a parent, is not presumed to have guardianship under s. 39 and has not been appointed as a guardian by a guardian's will or a Form 2 Appointment under the [http://canlii.ca/t/8rdx Family Law Act Regulation].

===Access, parenting time and contact===

The same concerns relating to a child's Aboriginal ancestry that apply to determining custody under the ''[[Divorce Act]]'' will also come up in determining access, as well as parenting time and contact under the ''[[Family Law Act]]'', especially where one of the parents isn't Aboriginal.

Aboriginal children have the right to keep a connection to their culture and heritage. This may influence the schedule of parenting time or contact an Aboriginal parent has, and where a non-Aboriginal parent may exercise parenting time or contact. It may also result in the court extending contact to a third party, such as an elder or another family member, who will keep the child in touch with his or her culture.

If a non-Aboriginal parent or a non-band member parent tries to exercise access to a child living on a reserve, the band may restrict that parent's ability to go onto the reserve to see the child. While this doesn't happen a great deal, the usual solution is for the parent trying to exercise access to ensure that the order or agreement which provides for the access requires the other parent to take the child off reserve for access visits.

==Child support and spousal support==

Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child support and spousal support.

There is, however, one significant additional issue about the calculation of income for the purposes of support calculations. Aboriginal people who qualify as "status Indians" under the federal ''Indian Act'' and who work on reserve may not be required to pay income tax. Because the [[Child Support Guidelines]] are based on the assumption that the payor of child support is also paying income tax, the standard method of calculating income under the Guidelines would give a distorted result.

Under s. 19(1)(b) of the Guidelines, a tax-exempt payor may have his or her income ''grossed up'' to account for this tax advantage. The grossing-up process essentially involves figuring out how much money a taxed payor would have to earn to have the tax-exempt person's income once income taxes are taken off.

Think of it like this:

<blockquote>Say a non-exempt payor makes a gross income of $40,000 per year. This is the non-exempt payor's income for the purposes of the Guidelines. Now, the non-exempt payor also pays taxes on that income, so his or her net income might really be about $30,000.</blockquote>
<blockquote>A tax-exempt payor making $40,000, on the other hand, would actually keep the whole $40,000 since no income taxes are paid on the $40,000. This, according to the Guidelines, is unfair, and the exempt payor's income should be re-calculated upwards.</blockquote>
<blockquote>Under the Guidelines, the tax-exempt payor must pay child support at a Guidelines income of what he or she would earn to have an after-tax income of $40,000, as if taxes were paid on his or her income. If a non-exempt payor would have to earn $55,000 to have a net income of $40,000, the tax-exempt payor's income will be set, for the purposes of child support, at $55,000.</blockquote>

In this example, a tax-exempt payor who earns $40,000 per year free of income tax, might be deemed to earn $55,000 per year for the purposes of child support, and child support will be calculated based on a Guidelines income of $55,000 per year. Grossing-up a payor's income is intended to ensure that the children benefit from the amount of support available based on an a gross income equivalent to what a non-exempt payor would earn to have the same net income.

The same sort of grossing-up process will apply when determining how much spousal support a tax-exempt payor should have to pay, particularly if the amount payable is being determined using the Spousal Support Advisory Guidelines, since the Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines.

==Family property and family debt==

Dividing property can be a bit of a problem for Aboriginal spouses when real property on reserve is involved.

In a nutshell, the ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Act]'' gives the federal government exclusive authority over laws relating to First Nations property and reserve lands. This means the provincial governments cannot pass laws dealing with First Nations property or their lands. Accordingly, in British Columbia, the ''[[Family Law Act]]'' can't be used to divide an interest in real property on reserve lands. Making matters worse, people living on reserve generally don't own their property the way that off-reserve property can be owned. The only kind of ownership individuals on reserve lands can have is a Certificate of Possession that gives the owner the right to occupy the land but not the legal title to that land.

If a treaty First Nation has negotiated the right to dispose of reserve lands, the rules are a bit different and the court may be able to make orders about real property on reserve lands under the ''[[Family Law Act]]''. Section 210 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) If provided for by the final agreement of a treaty first nation, the treaty first nation has standing in a proceeding under Part 5, in which</tt></blockquote>
<blockquote><blockquote><tt>(a) the treaty first nation is entitled under its final agreement to make laws restricting alienation of its treaty lands,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a parcel of its treaty lands is at issue, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) at least one spouse is a treaty first nation member of the treaty first nation.</tt></blockquote></blockquote>
<blockquote><tt>(2) In a proceeding to which subsection (1) applies, the Supreme Court must consider, among other matters, any evidence or representations respecting the applicable treaty first nation's laws restricting alienation of its treaty lands.</tt></blockquote>
<blockquote><tt>(3) The participation of a treaty first nation in a proceeding to which subsection (1) applies must be in accordance with the Supreme Court Family Rules and does not affect the court's ability to control the court's process.</tt></blockquote>

These are the general rules about family property and the court's authority under the ''[[Family Law Act]]'':

*'''Financial Assets:''' Cash, bank accounts, stocks, bonds and whatnot are called ''moveable property''. The court can deal with these sorts of assets if they are not situated on reserve lands.
*'''Real Property:''' Property and structures on reserve lands are ''immovable property''. The court cannot order the transfer of immovable property, but it can deal with other assets, like moveable property, to compensate a spouse for an interest in property which the court cannot deal with.
*'''Certificates of Possession:''' The court generally cannot deal with real property located on a reserve, however, the bulk of real property located within reserve lands is not "owned" the way a house off-reserve can be. People holding real property on reserve lands are generally only allowed to have and use the land by way of a Certificate of Possession. Since Certificates of Possession are dispensed under the authority of the federal government, the court cannot make an order for the transfer of the Certificate under the ''[[Family Law Act]]''. The spouse who has the Certificate will usually have to compensate the other spouse for their interest in the Certificate, providing that the Certificate can be shown to have a value.
*'''Exclusive Use of Property:''' Section 90 of the ''[[Family Law Act]]'' allows someone to apply for an order giving them exclusive use of the family home, but does not apply to family homes located on reserve lands.
'''

''
'''''Family Homes on Reserves and Matrimonial Interests or Rights Act'''''

''

In December 2013, the Federal Government proclaimed a new law, the Family Homes on Reserves and Matrimonial Interests or Rights Act (the “Act”).This Act, finally provides a process for dealing with family homes on reserve, during a relationship between married spouses or common-law partners, after that relationship breaks down or when a spouse or partner dies.

The Act is divided into two parts. The first part of the Act provides a mechanism for First Nations to enact laws respecting homes on reserve. This part of the Act has been in force since December 16, 2013.

The second part of the Act came into force a year later on December 16, 2014, and provides rules to deal with homes on reserve until such time as a First Nation opts to enact its own laws to deal with homes on reserve.

Generally, this law applies to married couples and common-law spouse living on reserve, where at least one of them is a First Nation band member or First Nation person entitled to be band member or status Indian whose First Nation has not opted to take over responsibility for the management and control of their reserve lands and resources under the First Nations Land Management Act or manage their lands pursuant to a self-government agreement.

'''Division of the Value and Interests or Rights to the Family Home'''

The Act sets out that spouses or common-law partners are entitled to one half of the value of the interest or right that either of them holds in the family home in the event of relationship breakdown or death of one of the spouses.

Sections 28 and 34 of the Act outline the details on how value of the family home is to be determined. It takes into consideration the appreciation in value that may have occurred during the relationship, contributions made by each spouse and any debts or liabilities; and is typically based on the amount that a buyer would reasonably be expected to pay for comparable interests.

'''Emergency Protection Orders'''

While the Act provides that designated judges have the power to make emergency protection orders, the Province has decided it will not designate judges to make emergency protection orders under the Act at this time. Currently, the only protection orders available are those made under section 183 of the ''[[Family Law Act]]'', which remain available both on and off reserve.

'''
'''Death of a Spouse or Common Law Partner'''

Paragraph 14 of the Act provides that a spouse who does not hold a right or interest in the family home on reserve can stay in the home for a period of 180 days after the day on which the death of their spouse or common law partner occurs.

==Getting legal help==

This section is only a brief sketch of some of the special issues that Aboriginal people might have to deal with in the course of a family law dispute. If you have a problem touching on one of these areas, you should get advice from a lawyer.

You may be able to get legal help from the Legal Services Society's Aboriginal band outreach program or an Aboriginal community legal worker. Look for these agencies on [http://www.clicklaw.bc.ca/helpmap/search?k=aboriginal& www.clicklaw.ca] using the HelpMap feature to find help near to where you are.

==Resources and links==
===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7vhk Indian Act]''
* ''[http://canlii.ca/t/844q Interpretation Act]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''
*[http://laws-lois.justice.gc.ca/eng/acts/F-1.2 ''Family Homes on Reserves and Matrimonial Interests or Rights Act]''

===Documents===

* [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]

===Links===

* [http://aboriginal.legalaid.bc.ca/ Legal Services Society Website: Aboriginal section]
* [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Clicklaw Resources on Aboriginal Law]
* [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]
* [http://www2.gov.bc.ca/gov/content/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations-negotiations/first-nations-a-z-listing/maa-nulth-first-nations First Nations of the Maa-Nulth Treaty]
* [http://www2.gov.bc.ca/gov/content/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations-negotiations/first-nations-a-z-listing/tsawwassen-first-nation Tsawwassen First Nation Treaty]
* [http://www.coemrp.ca Centre of Excellence for Matrimonial Real Property]

{{REVIEWED | reviewer = [[Rhaea Bailey]], December 2, 2016}}

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Indigenous Families

2017-08-21T14:33:34Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = further}}{{JPBOFL Editor Badge
|ChapterEditors = [[Arlene Henry | Arlene Henry, QC]] and [[Rhaea Bailey]]
}}
{{Clicklawbadge
|resourcetype = many resources on
|link = [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Aboriginal law topics]
}}Aboriginal people who are dealing with a family law problem may face some particular issues. Some of them involve cultural concerns while others stem from the federal government's ''[http://canlii.ca/t/7vhk Indian Act]''. This section addresses these issues briefly. However, for more complete information I strongly encourage you to consult with a family law lawyer who has expertise in Aboriginal legal issues.

This section look at issues specific to Aboriginal people that relate to the care and control of children, calculating the amount of child and spousal support payments, and dividing family property and family debt.

==The care of children==

All of the usual factors that govern the court's consideration of issues involving the care and control of children apply to the care and control of Aboriginal children, whether the child's ancestry comes from one parent or from both. In addition to the usual factors, however, the court will also look at a few other issues related to the child's Aboriginal heritage.

===Custody under the ''Divorce Act''===

In addition to the usual factors governing an award of child custody under s. 16 of the ''[[Divorce Act]]'', the court must also take into consideration a child's Aboriginal heritage when making a decision about custody. This is not expressly set out anywhere in the legislation, but past cases have decided that a child's Aboriginal heritage should be considered as part of the general ''best interests of the child'' test.

This principle was established in British Columbia by ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761, a decision of the Supreme Court of Canada. In its decision, the court said that:

<blockquote>"... the trial judge had given careful attention to the aboriginal ancestry of [the child], together with all the other factors relevant to [the child's] best interests, and that there was no error in his decision ..."</blockquote>

In another case, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada commented that:

<blockquote>"... racial identity is but one factor that may be considered in determining personal identity; the relevancy of this factor depends on the context. ... All factors must be considered pragmatically, as different situations and different philosophies require an individual analysis on the basis of reliable evidence."</blockquote>

===Guardianship under the ''Family Law Act''===

In addition to the usual rules dealing with guardianship under the ''[[Family Law Act]]'', members of Canada's First Nations are subject to an additional and unwelcome burden under the federal ''[http://canlii.ca/t/7vhk Indian Act]'', which allows the Minister of Aboriginal Affairs and Northern Development to appoint a person to be the guardian of the child. You should expect that this authority will only be exercised when both parents die without leaving a will that passes guardianship to some other person, or when there are serious concerns about the parents' ability to properly care for the child.

Where there is an application for guardianship of a treaty First Nation child in a family law court proceeding, under ss. 208 and 209 of the ''[[Family Law Act]]'':

#the First Nation government must be served with notice of the application,
#the First Nation government has standing in the court proceeding, and
#the court must consider the laws and customs of the First Nation in making its decision.

Section 208 applies to Nisga'a children; s. 209 deals with other treaty First Nation children and says this:

<blockquote><tt>(1) If an application for guardianship is made respecting a treaty first nation child and the final agreement of the treaty first nation to which the child belongs provides for it, the treaty first nation</tt></blockquote>
<blockquote><blockquote><tt>(a) must be served with notice of the proceeding, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) has standing in the proceeding.</tt></blockquote></blockquote>
<blockquote><tt>(2) In a proceeding to which subsection (1) applies, the court must consider, in addition to any other matters it is required by law to consider and subject to any limits or conditions set out in the final agreement, any evidence or representations respecting the laws and customs of the treaty first nation.</tt></blockquote>

Under s. 29.1 of the provincial ''[http://canlii.ca/t/844q Interpretation Act]'', the present treaty First Nations are the Tsawwassen First Nation and the Maa-nulth First Nations.

Remember that the only time an application must be made for guardianship is where a person, including a parent, is not presumed to have guardianship under s. 39 and has not been appointed as a guardian by a guardian's will or a Form 2 Appointment under the [http://canlii.ca/t/8rdx Family Law Act Regulation].

===Access, parenting time and contact===

The same concerns relating to a child's Aboriginal ancestry that apply to determining custody under the ''[[Divorce Act]]'' will also come up in determining access, as well as parenting time and contact under the ''[[Family Law Act]]'', especially where one of the parents isn't Aboriginal.

Aboriginal children have the right to keep a connection to their culture and heritage. This may influence the schedule of parenting time or contact an Aboriginal parent has, and where a non-Aboriginal parent may exercise parenting time or contact. It may also result in the court extending contact to a third party, such as an elder or another family member, who will keep the child in touch with their culture.

If a non-Aboriginal parent or a non-band member parent tries to exercise access to a child living on a reserve, the band may restrict that parent's ability to go onto the reserve to see the child. While this doesn't happen a great deal, the usual solution is for the parent trying to exercise access to ensure that the order or agreement which provides for the access requires the other parent to take the child off reserve for access visits.

==Child support and spousal support==

Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child support and spousal support.

There is, however, one significant additional issue about the calculation of income for the purposes of support calculations. Aboriginal people who qualify as ''status Indians'' under the federal ''Indian Act'' and who work on reserve may not be required to pay income tax. Because the [[Child Support Guidelines]] are based on the assumption that the payor of child support is also paying income tax, the standard method of calculating income under the Guidelines would give a distorted result.

Under s. 19(1)(b) of the Guidelines, a tax-exempt payor may have their income ''grossed up'' to account for this tax advantage. The grossing-up process essentially involves figuring out how much money a taxed payor would have to earn to have the tax-exempt person's income once income taxes are taken off.

Think of it like this:

<blockquote>Say a non-exempt payor makes a gross income of $40,000 per year. This is the non-exempt payor's income for the purposes of the Guidelines. Now, the non-exempt payor also pays taxes on that income, so their net income might really be about $30,000.</blockquote>
<blockquote>A tax-exempt payor making $40,000, on the other hand, would actually keep the whole $40,000 since no income taxes are paid on the $40,000. This, according to the Guidelines, is unfair, and the exempt payor's income should be re-calculated upwards.</blockquote>
<blockquote>Under the Guidelines, the tax-exempt payor must pay child support at a Guidelines income of what they would earn to have an after-tax income of $40,000, as if taxes were paid on their income. If a non-exempt payor would have to earn $55,000 to have a net income of $40,000, the tax-exempt payor's income will be set, for the purposes of child support, at $55,000.</blockquote>

In this example, a tax-exempt payor who earns $40,000 per year free of income tax, might be deemed to earn $55,000 per year for the purposes of child support, and child support will be calculated based on a Guidelines income of $55,000 per year. Grossing-up a payor's income is intended to ensure that the children benefit from the amount of support available based on an a gross income equivalent to what a non-exempt payor would earn to have the same net income.

The same sort of grossing-up process will apply when determining how much spousal support a tax-exempt payor should have to pay, particularly if the amount payable is being determined using the Spousal Support Advisory Guidelines, since the Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines.

==Family property and family debt==

Dividing property can be a bit of a problem for Aboriginal spouses when real property on reserve is involved.

In a nutshell, the ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Act]'' gives the federal government exclusive authority over laws relating to First Nations property and reserve lands. This means the provincial governments cannot pass laws dealing with First Nations property or their lands. Accordingly, in British Columbia, the ''[[Family Law Act]]'' can't be used to divide an interest in real property on reserve lands. Making matters worse, people living on reserve generally don't own their property the way that off-reserve property can be owned. The only kind of ownership individuals on reserve lands can have is a Certificate of Possession that gives the owner the right to occupy the land but not the legal title to that land.

If a treaty First Nation has negotiated the right to dispose of reserve lands, the rules are a bit different and the court may be able to make orders about real property on reserve lands under the ''[[Family Law Act]]''. Section 210 of the ''[[Family Law Act]]'' says this:

<blockquote><tt>(1) If provided for by the final agreement of a treaty first nation, the treaty first nation has standing in a proceeding under Part 5, in which</tt></blockquote>
<blockquote><blockquote><tt>(a) the treaty first nation is entitled under its final agreement to make laws restricting alienation of its treaty lands,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a parcel of its treaty lands is at issue, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) at least one spouse is a treaty first nation member of the treaty first nation.</tt></blockquote></blockquote>
<blockquote><tt>(2) In a proceeding to which subsection (1) applies, the Supreme Court must consider, among other matters, any evidence or representations respecting the applicable treaty first nation's laws restricting alienation of its treaty lands.</tt></blockquote>
<blockquote><tt>(3) The participation of a treaty first nation in a proceeding to which subsection (1) applies must be in accordance with the Supreme Court Family Rules and does not affect the court's ability to control the court's process.</tt></blockquote>

These are the general rules about family property and the court's authority under the ''[[Family Law Act]]'':

*'''Financial Assets:''' Cash, bank accounts, stocks, bonds and whatnot are called ''moveable property''. The court can deal with these sorts of assets if they are not situated on reserve lands.
*'''Real Property:''' Property and structures on reserve lands are ''immovable property''. The court cannot order the transfer of immovable property, but it can deal with other assets, like moveable property, to compensate a spouse for an interest in property which the court cannot deal with.
*'''Certificates of Possession:''' The court generally cannot deal with real property located on a reserve, however, the bulk of real property located within reserve lands is not "owned" the way a house off-reserve can be. People holding real property on reserve lands are generally only allowed to have and use the land by way of a Certificate of Possession. Since Certificates of Possession are dispensed under the authority of the federal government, the court cannot make an order for the transfer of the Certificate under the ''[[Family Law Act]]''. The spouse who has the Certificate will usually have to compensate the other spouse for their interest in the Certificate, providing that the Certificate can be shown to have a value.
*'''Exclusive Use of Property:''' Section 90 of the ''[[Family Law Act]]'' allows someone to apply for an order giving them exclusive use of the family home, but does not apply to family homes located on reserve lands.
'''

''
'''''Family Homes on Reserves and Matrimonial Interests or Rights Act'''''

''

In December 2013, the Federal Government proclaimed a new law, the ''Family Homes on Reserves and Matrimonial Interests or Rights Act''. This ''Act'', finally provides a process for dealing with family homes on reserve, during a relationship between married spouses or common-law partners, after that relationship breaks down or when a spouse or partner dies.

The ''Act'' is divided into two parts. The first part of the ''Act'' provides a mechanism for First Nations to enact laws respecting homes on reserve. This part of the ''Act'' has been in force since December 16, 2013.

The second part of the ''Act'' came into force a year later on December 16, 2014, and provides rules to deal with homes on reserve until such time as a First Nation opts to enact its own laws to deal with homes on reserve.

Generally, this law applies to married couples and common-law spouse living on reserve, where at least one of them is a First Nation band member or First Nation person entitled to be band member or status Indian whose First Nation has not opted to take over responsibility for the management and control of their reserve lands and resources under the First Nations Land Management Act or manage their lands pursuant to a self-government agreement.

'''Division of the Value and Interests or Rights to the Family Home'''

The ''Act'' sets out that spouses or common-law partners are entitled to one half of the value of the interest or right that either of them holds in the family home in the event of relationship breakdown or death of one of the spouses.

Sections 28 and 34 of the ''Act'' outline the details on how value of the family home is to be determined. It takes into consideration the appreciation in value that may have occurred during the relationship, contributions made by each spouse and any debts or liabilities; and is typically based on the amount that a buyer would reasonably be expected to pay for comparable interests.

'''Emergency Protection Orders'''

While the ''Act'' provides that designated judges have the power to make emergency protection orders, the Province has decided it will not designate judges to make emergency protection orders under the ''Act'' at this time. Currently, the only protection orders available are those made under section 183 of the ''[[Family Law Act]]'', which remain available both on and off reserve.

'''
'''Death of a Spouse or Common Law Partner'''

Paragraph 14 of the ''Act'' provides that a spouse who does not hold a right or interest in the family home on reserve can stay in the home for a period of 180 days after the day on which the death of their spouse or common law partner occurs.

==Getting legal help==

This section is only a brief sketch of some of the special issues that Aboriginal people might have to deal with in the course of a family law dispute. If you have a problem touching on one of these areas, you should get advice from a lawyer.

You may be able to get legal help from the Legal Services Society's Aboriginal band outreach program or an Aboriginal community legal worker. Look for these agencies on [http://www.clicklaw.bc.ca/helpmap/search?k=aboriginal& www.clicklaw.ca] using the HelpMap feature to find help near to where you are.

==Resources and links==
===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7vhk Indian Act]''
* ''[http://canlii.ca/t/844q Interpretation Act]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''
*[http://laws-lois.justice.gc.ca/eng/acts/F-1.2 ''Family Homes on Reserves and Matrimonial Interests or Rights Act]''

===Documents===

* [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]

===Links===

* [http://aboriginal.legalaid.bc.ca/ Legal Services Society Website: Aboriginal section]
* [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Clicklaw Resources on Aboriginal Law]
* [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]
* [http://www2.gov.bc.ca/gov/content/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations-negotiations/first-nations-a-z-listing/maa-nulth-first-nations First Nations of the Maa-Nulth Treaty]
* [http://www2.gov.bc.ca/gov/content/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations-negotiations/first-nations-a-z-listing/tsawwassen-first-nation Tsawwassen First Nation Treaty]
* [http://www.coemrp.ca Centre of Excellence for Matrimonial Real Property]

{{REVIEWED | reviewer = [[Rhaea Bailey]], December 2, 2016}}

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Further Topics and Overlapping Legal Issues in Family Law

2017-08-21T14:25:48Z

Penny Goldsmith:

{{JPBOFL Start Chapter
| Related =
[[Aboriginal Families]]{{·}}[[Immigrants and Family Law]]{{·}}[[Same-Sex Relationships and Issues Affecting Transgendered and Transsexual People]]{{·}}[[Naming and Changes of Name]]{{·}}[[Wills and Estates Issues in Family Law]]{{·}}[[Conflict of Laws]]
}}
{{JP Boyd on Family Law TOC|expanded = further}}{{JPBOFL Editor Badge
|ChapterEditors = [[Rhaea Bailey]], [[Taruna Agrawal]], [[Todd Bell]], [[Bob Mostar]] and [[Mark Norton]]
}}
==Further topics for specific communities==
While family law has evolved to treat many minority groups, such as same-sex couples, in the same way as it treats the majority, this is not always true. People are sometimes subject to different laws in certain circumstances.

The resource you're reading has been updated to explain and recognize some of the ways laws apply differently to specific communities. Parts of this chapter deal with further topics unique to [[Aboriginal Families|Aboriginal families]] and/or those living on reserves, [[Immigrants and Family Law|newcomers to Canada]] and those who support or rely on them, and [[Same-Sex Relationships and Issues Affecting Transgendered and Transsexual People| the LGBTQ community]].

===Aboriginal families===
Aboriginal people exist in a unique legal environment arising from the fact that they are the first peoples of what is now known as Canada. Aboriginal people's longstanding occupancy and use of these lands give rise to ''Aboriginal rights'' which became constitutionally protected when s. 35 of the ''Constitution Act, 1982'' was enacted over 30 years ago. The ''Constitution'' recognizes and affirms aboriginal and treaty rights of First Nations, Inuit and Métis peoples of Canada.

This chapter focuses on issues in family law that affect BC's Aboriginal families. While all of the usual factors apply to Aboriginal families, courts must also pay attention to Aboriginal ancestry, culture and traditions when they make decisions, including determining the best interests of Aboriginal children. This is because Aboriginal children have the right to keep a connection to their culture and heritage, which are the strong foundations of many Aboriginal families. This section briefly reviews particular issues unique to Aboriginal families, including:
*the care of children,
*child support
*spousal support, and
*family property and family debt.

The section on [[Aboriginal Families]] also briefly addresses issues caused by the ''[http://canlii.ca/t/7vhk Indian Act]'', a law which has allowed the government to control most aspects of Aboriginal life since its inception in 1876.

===Newcomers to Canada and their families===
Many Canadian families are the product of Canadian citizens or permanent residents who partner with people from other countries. ''Sponsorship'' by a Canadian citizen or permanent resident of a foreign spouse this creates legal issues that are unique to families with members who are immigrants or refugees.

In 2017, the Canadian government introduced some important changes to the rules surrounding sponsored spouses. The updates in this chapter address those changes and provides information on:

* support obligations of sponsors, and
* agencies that help immigrants and refugees.

===LGBQT issues in family law===
Not too long ago, this resource had an entire chapter about the particular issues affecting those in same-sex relationships. A stand-alone chapter for same-sex relationships, however, is no longer necessary.

For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist because of legislation has been on the wane. From the [http://canlii.ca/t/5239 Little Sisters decision] on censorship to ''[http://canlii.ca/t/1frkt Egan v. Canada]'', [1995] 2 SCR 513 on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed suit.

Gays and lesbians are just as entitled as straight people to pursue claims relating to:
*the care of children,
*child support,
*spousal support, and
*the division of property

Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.

This said, legal uncertainty exists for people who are trans or gender non-binary, at least in some contexts. The section on ''[[Same-Sex Relationships and Issues Affecting Transgendered and Transsexual People#Issues affecting transgendered and transsexual people|Issues affecting transgendered and transsexual people]]'' discusses some of the difficulties that the law has in serving people who traverse the gender spectrum.

==Overlapping legal issues==

Problems like children's parenting arrangements, the payment of support, and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella.

This chapter takes a look at a selection of relatively common family law problems. It talks about issues affecting:

*the overlap between wills and estates law and family law, and
*what happens when people and property are located in different legal jurisdictions.

{{REVIEWED | reviewer = [[Nate Russell]], July 20, 2017}}

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Family Violence and Child Protection

2017-08-21T14:17:35Z

Penny Goldsmith:

Family Violence and Child Protection

2017-08-21T14:16:53Z

Penny Goldsmith:

Family Law Act Basics

2017-08-13T18:55:22Z

Penny Goldsmith:

{{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 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 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==

===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 unmarried spouses,
*are parents of a child together,
*want guardianship of a child,
*want contact 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 people who are married, 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; 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:

*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:

*family violence, and protecting adults and children from violence,
*determining who is a child’s parent,
*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 decision-making and caring for children,
*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,
*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,
*dividing property located outside the province, and
*managing children’s property.

The act, in other words, covers everything except adoption, child protection and wills issues!

==The law about children==

===How are decisions about children made?===

The ''[[Family Law Act]]'' says that parents, judges, and other decision-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 the best-interests factors at s. 37, as well as a list of considerations 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 considerations 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 best interests of children and children’s views====

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.

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 often much cheaper and faster to get than an assessment under s. 211.

===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. 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 have yet to figure out how child support will work in situations like this.

===Who is a guardian?===

Under the ''[[Family Law Act]]'', the people who are responsible for caring for a child are ''guardians''. A child can have one guardian, two guardians, or more than two guardians. 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 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 Court and the Supreme Court can make orders about guardianship.

It's important to know that a guardian's spouse or partner doesn’t become a guardian to a child just because of his or her relationship with the child’s guardian. The only way for a spouse or partner to become a guardian is to be appointed as a guardian by the court.

===What are parental responsibilities?===

The different ways that guardians care for a child and the decisions guardians have to make are called ''parental responsibilities.'' 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. However, 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 his or her 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.

It's important to know that 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 be appointed as a guardian by the court.

===What's the different between parenting time and contact?===

The time a guardian has with a child is called ''parenting time''. 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. Someone with contact ''does not'' have the right to make day-to-day decisions for the child.

===How do agreements and orders about parenting time and contact work?===

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.

Agreements and orders about parenting time and contact can set a fixed schedule of time with a child or they can say that the parenting time or contact will happen when everyone agrees, as the child prefers or on some other term. Parenting time and contact can also be on conditions, for example that the person will not smoke or drink during his or her time with the child, or 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 party’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#Relocating_with_or_without_a_child | 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 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 then 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 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 with whom the child lives most often is presumed to meet his or her support obligation through the many tangible and intangible ways that he or she cares for the child living in his or her home. Everyone else pays child support, and more than one person can be required to pay child support at the same time for the same child.

In certain circumstances, stepparents can also be required to pay child support. A ''stepparent'' is the married or unmarried spouse of a parent, as long as:

*the spouse has contributed to the child’s costs for at least one year, and
*the claim 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 Guidelines. Most of the time, child support is simple to figure out: you find the Guidelines tables for the province or territory where the payor lives and look up the amount payable 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,
*the payor is a stepparent or a guardian who isn't a parent,
*one or more children live mostly with each guardian, called ''split custody'',
*the guardians share the children’s time equally or almost equally, called ''shared custody'', or
*the payment of the tables amount would cause "undue hardship" 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 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 [[Child Support Guidelines|Guidelines]] and the [[Exceptions_to_the_Child_Support_Guidelines|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. However child support gets paid, it's important for the payor to keep a record of how much was paid and when it was paid, perhaps from receipts provided by the recipient, from cancelled cheques or from bank statements. This can help prevent arguments about whether a payment was late or missed altogether.

===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 child will still be supported if the payor dies.

The parties can agree and the court can order that the payor’s obligation to pay child 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 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'', for the purposes of spousal support, ''spouse'' includes people who:

*are married to each other or used to be married to each other,
*have lived together in a "marriage-like relationship" 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 you’ll get it. Someone asking for spousal support also show that he or she is ''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 proceeding for spousal support within two years of the date of their divorce or the annulment of their marriage, and
*unmarried spouses have to start a proceeding 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]]''.

It's important to know that under s. 198(5), 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.

===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 [http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/spag/index.html Spousal Support Advisory Guidelines]. The Advisory Guidelines is not a law like the Child Support Guidelines and is not mandatory. The ''[[Family Law Act]]'' does not mention the Advisory Guidelines. However, the Advisory Guidelines can be very helpful to figure out how much should be paid and how long it should be paid for.

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

===Is a spouse’s conduct taken into account?===

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 act 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. If child support is also being paid, child support and spousal support payments can be staggered if that's fair to both parties. 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, repeating 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 ''review'', 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 resolution 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]]'', for the purposes of dividing property and debt, ''spouse'' includes people who:

*are married to each other or who used to be 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.

It's important to know that under s. 198(5), 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.

===What is 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 trust interests, and
*property bought with excluded property.

===What is 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'', the law before the ''[[Family Law Act]]'', doesn’t matter under the new law.) Family property includes:

*real estate,
*bank accounts,
*interests in companies and businesses,
*debts owed to a spouse,
*pensions and RRSPs, and
*other personal property.

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

Remember that excluded property includes property bought during the relationship with excluded property, as long as you can trace the old excluded property into the new property.

===What is 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 separation. Family debt also includes debt incurred after the date of separation if the debt was incurred to maintain family property, like repairing the family home or paying the mortgage.

===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 binding 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 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 agreement, got divorced, or the court made a declaration 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.

====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 hearing 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.

====RRSP accounts====

RRSPs are family property. If RRSPs are divided, the federal ''[http://canlii.ca/t/7vb7 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.

British Columbia is one of a handful of provinces that let people decide ''not'' to divide their CPP credits. To do this, very specific language must be used and it's best to consult a lawyer to make sure you get it exactly right.

===How is foreign property divided?===

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

===What about 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 trustee 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.

===What are the 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.

===How do you determine what is in 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.

===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 order says otherwise. Protection orders can be renewed.

====Applying for a protection orders====

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 court proceeding or not.

====Protection orders that conflict with other orders====

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 ''[[Family Law Act]]'' protection orders but are made under the ''[http://canlii.ca/t/7vf2 Criminal Code]'' or under the laws of another jurisdiction.

====Enforcing protection orders====

Protection orders cannot be enforced under the ''[[Family Law Act]]'' or the provincial ''[http://canlii.ca/t/848d Offence Act]''. They can only be enforced under s.127 of the ''[http://canlii.ca/t/7vf2 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 coordination.

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 rather than going to court.

===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.

===What is 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 settlement. 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]].

===What are 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]].

===What is 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 trial 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 ''[http://canlii.ca/t/84gc 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]].

===What is 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 coordinator’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]].

==In-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 ''[http://canlii.ca/t/ldg3 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 the declaration 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 Court.

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 appeal.

===How does the court manage court processes and people in court?===

====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 also 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 under s. 221. When making such orders, the court can also:

#make the order last for a specific period of time, or until the party has complied with another order,
#require the party to pay another person’s expenses, and,
#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:

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

Conduct orders include orders:

#that the parties participate in a family dispute resolution process,
#that one or more of the parties, or a child, attend counselling,
#restricting communication between the parties, and,
#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:

#striking out all or part of a claim or application,
#delaying a court proceeding while the parties participate in a family dispute resolution process, and,
#requiring that all other applications be heard by the same judge.

===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 act are used. Under s. 230, the court may enforce an order by requiring a party to:

#post security in court to guarantee his or her future good behaviour,
#cover the expenses of the other party resulting from his or her conduct, or,
#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===

* ''[http://canlii.ca/t/8q3k Family Law Act]''

===Resources===

* [[Media:A_Very_Brief_Introduction_to_the_FLA_-_April_2013_-_JP_Boyd.pdf|A Very Brief Introduction to the Family Law Act]] (PDF): A plain-language overview of the ''Family Law Act'' written for justice system workers and advocates.
* [[Media:An_Overview_of_the_FLA_-_October_2012_-_JP_Boyd.pdf|An Overview of the Family Law Act]] (PDF): A more complicated overview of the ''Family Law Act'', prepared before the act came into effect, written for lawyers and judges.

===Links===

* [http://www.ag.gov.bc.ca/legislation/family-law/acts-explained.htm The Family Law Act Explained], from the Ministry of Justice
* [http://www.ag.gov.bc.ca/legislation/family-law/regs-explained.htm The Family Law Act Regulations Explained], from the Ministry of Justice
* [http://www.ag.gov.bc.ca/legislation/family-law/rules-amendments.htm Amendments to Rules of Court], from the MInistry of Justice
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/familyLawInBCAfterMarch18_2013.php Family Law in BC after March 18, 2013], from the Legal Services Society
* [http://resources.lss.bc.ca/pdfs/pubs/Guide-to-the-New-BC-Family-Law-Act-eng.pdf Guide to the New BC Family Law Act], from the Legal Services Society
* [http://resources.lss.bc.ca/pdfs/pubs/Living-Together-or-Living-Apart-eng.pdf Living Together or Living Apart], from the Legal Services Society

{{REVIEWED | reviewer = [[JP Boyd]], August 8, 2017}}

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[[Category:JP Boyd on Family Law]]

Family Law Act Basics

2017-08-13T18:54:52Z

Penny Goldsmith:

{{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 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 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==

===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 unmarried spouses,
*are parents of a child together,
*want guardianship of a child,
*want contact 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 people who are married, 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,
*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:

*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:

*family violence, and protecting adults and children from violence,
*determining who is a child’s parent,
*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 decision-making and caring for children,
*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,
*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,
*dividing property located outside the province, and
*managing children’s property.

The ''Act'', in other words, covers everything except adoption, child protection and wills issues!

==The law about children==

===How are decisions about children made?===

The ''[[Family Law Act]]'' says that parents, judges, and other decision-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 the best-interests factors at s. 37, as well as a list of considerations 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 considerations 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 best interests of children and children’s views====

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.

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 often much cheaper and faster to get than an assessment under s. 211.

===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. 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 have yet to figure out how child support will work in situations like this.

===Who is a guardian?===

Under the ''[[Family Law Act]]'', the people who are responsible for caring for a child are ''guardians''. A child can have one guardian, two guardians, or more than two guardians. 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 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 Court and the Supreme Court can make orders about guardianship.

It's important to know that a guardian's spouse or partner doesn’t become a guardian to a child just because of their relationship with the child’s guardian. The only way for a spouse or partner to become a guardian is to be appointed as a guardian by the court.

===What are parental responsibilities?===

The different ways that guardians care for a child and the decisions guardians have to make are called ''parental responsibilities.'' 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. However, 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 their 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.

It's important to know that 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, they will have to be appointed as a guardian by the court.

===What's the different between parenting time and contact?===

The time a guardian has with a child is called ''parenting time''. 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. Someone with contact ''does not'' have the right to make day-to-day decisions for the child.

===How do agreements and orders about parenting time and contact work?===

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.

Agreements and orders about parenting time and contact can set a fixed schedule of time with a child or they can say that the parenting time or contact will happen when everyone agrees, as the child prefers or on some other term. Parenting time and contact can also be on conditions, for example that the person will not smoke or drink during their time with the child, or 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 their 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 their 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 party’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#Relocating_with_or_without_a_child | 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, they have 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:

*they want to move ''in good faith'', and
*they have 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 then 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:

*they want to move in good faith,
*they have 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 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 with whom the child lives most often is presumed to meet their support obligation through the many tangible and intangible ways that they care for the child living in their home. Everyone else pays child support, and more than one person can be required to pay child support at the same time for the same child.

In certain circumstances, stepparents can also be required to pay child support. A ''stepparent'' is the married or unmarried spouse of a parent, as long as:

*the spouse has contributed to the child’s costs for at least one year, and
*the claim 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 Guidelines. Most of the time, child support is simple to figure out: you find the Guidelines tables for the province or territory where the payor lives and look up the amount payable 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,
*the payor is a stepparent or a guardian who isn't a parent,
*one or more children live mostly with each guardian, called ''split custody'',
*the guardians share the children’s time equally or almost equally, called ''shared custody'', or
*the payment of the tables amount would cause "undue hardship" 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 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 they 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 [[Child Support Guidelines|Guidelines]] and the [[Exceptions_to_the_Child_Support_Guidelines|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. However child support gets paid, it's important for the payor to keep a record of how much was paid and when it was paid, perhaps from receipts provided by the recipient, from cancelled cheques or from bank statements. This can help prevent arguments about whether a payment was late or missed altogether.

===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 child will still be supported if the payor dies.

The parties can agree and the court can order that the payor’s obligation to pay child support will continue after the payor’s death and be paid from their estate. 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'', for the purposes of spousal support, ''spouse'' includes people who:

*are married to each other or used to be married to each other,
*have lived together in a marriage-like relationship 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 you’ll get it. Someone asking for spousal support 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 proceeding for spousal support within two years of the date of their divorce or the annulment of their marriage, and
*unmarried spouses have to start a proceeding 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]]''.

It's important to know that under s. 198(5), 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.

===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 [http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/spag/index.html Spousal Support Advisory Guidelines]. The Advisory Guidelines is not a law like the Child Support Guidelines and is not mandatory. The ''[[Family Law Act]]'' does not mention the Advisory Guidelines. However, the Advisory Guidelines can be very helpful to figure out how much should be paid and how long it should be paid for.

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

===Is a spouse’s conduct taken into account?===

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 act 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. If child support is also being paid, child support and spousal support payments can be staggered if that's fair to both parties. 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, repeating 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 their 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 their 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 ''review'', 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 resolution 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 their 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]]'', for the purposes of dividing property and debt, ''spouse'' includes people who:

*are married to each other or who used to be 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.

It's important to know that under s. 198(5), 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.

===What is 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 trust interests, and
*property bought with excluded property.

===What is 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'', the law before the ''[[Family Law Act]]'', doesn’t matter under the new law.) Family property includes:

*real estate,
*bank accounts,
*interests in companies and businesses,
*debts owed to a spouse,
*pensions and RRSPs, and
*other personal property.

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

Remember that excluded property includes property bought during the relationship with excluded property, as long as you can trace the old excluded property into the new property.

===What is 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 separation. Family debt also includes debt incurred after the date of separation if the debt was incurred to maintain family property, like repairing the family home or paying the mortgage.

===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 binding 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 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 agreement, got divorced, or the court made a declaration 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.

====Excluded property====

Each spouse’s excluded property is presumed to remain their 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 hearing 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.

====RRSP accounts====

RRSPs are family property. If RRSPs are divided, the federal ''[http://canlii.ca/t/7vb7 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.

British Columbia is one of a handful of provinces that let people decide ''not'' to divide their CPP credits. To do this, very specific language must be used and it's best to consult a lawyer to make sure you get it exactly right.

===How is foreign property divided?===

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

===What about 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 trustee 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 themself, or someone else, from family violence.

===What are the 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.

===How do you determine what is in 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.

===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 order says otherwise. Protection orders can be renewed.

====Applying for a protection orders====

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 court proceeding or not.

====Protection orders that conflict with other orders====

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 ''[[Family Law Act]]'' protection orders but are made under the ''[http://canlii.ca/t/7vf2 Criminal Code]'' or under the laws of another jurisdiction.

====Enforcing protection orders====

Protection orders cannot be enforced under the ''[[Family Law Act]]'' or the provincial ''[http://canlii.ca/t/848d Offence Act]''. They can only be enforced under s.127 of the ''[http://canlii.ca/t/7vf2 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 coordination.

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 rather than going to court.

===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.

===What is 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 settlement. 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]].

===What are 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]].

===What is 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 trial 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 ''[http://canlii.ca/t/84gc 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]].

===What is 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 coordinator’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]].

==In-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 ''[http://canlii.ca/t/ldg3 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 the declaration 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.
*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 Court.

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 appeal.

===How does the court manage court processes and people in court?===

====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 also 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 under s. 221. When making such orders, the court can also:

*make the order last for a specific period of time, or until the party has complied with another order,
*require the party to pay another person’s expenses, and,
*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:

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

Conduct orders include orders:

*that the parties participate in a family dispute resolution process,
*that one or more of the parties, or a child, attend counselling,
*restricting communication between the parties, and,
*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:

*striking out all or part of a claim or application,
*delaying a court proceeding while the parties participate in a family dispute resolution process, and,
*requiring that all other applications be heard by the same judge.

===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 act are used. Under s. 230, the court may enforce an order by requiring a party to:

*post security in court to guarantee their future good behaviour,
*cover the expenses of the other party resulting from their conduct, or,
*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===

* ''[http://canlii.ca/t/8q3k Family Law Act]''

===Resources===

* [[Media:A_Very_Brief_Introduction_to_the_FLA_-_April_2013_-_JP_Boyd.pdf|A Very Brief Introduction to the Family Law Act]] (PDF): A plain-language overview of the ''Family Law Act'' written for justice system workers and advocates.
* [[Media:An_Overview_of_the_FLA_-_October_2012_-_JP_Boyd.pdf|An Overview of the Family Law Act]] (PDF): A more complicated overview of the ''Family Law Act'', prepared before the act came into effect, written for lawyers and judges.

===Links===

* [http://www.ag.gov.bc.ca/legislation/family-law/acts-explained.htm The Family Law Act Explained], from the Ministry of Justice
* [http://www.ag.gov.bc.ca/legislation/family-law/regs-explained.htm The Family Law Act Regulations Explained], from the Ministry of Justice
* [http://www.ag.gov.bc.ca/legislation/family-law/rules-amendments.htm Amendments to Rules of Court], from the MInistry of Justice
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/familyLawInBCAfterMarch18_2013.php Family Law in BC after March 18, 2013], from the Legal Services Society
* [http://resources.lss.bc.ca/pdfs/pubs/Guide-to-the-New-BC-Family-Law-Act-eng.pdf Guide to the New BC Family Law Act], from the Legal Services Society
* [http://resources.lss.bc.ca/pdfs/pubs/Living-Together-or-Living-Apart-eng.pdf Living Together or Living Apart], from the Legal Services Society

{{REVIEWED | reviewer = [[JP Boyd]], August 8, 2017}}

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[[Category:JP Boyd on Family Law]]

Divorce Act Basics

2017-08-13T18:33:56Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC}}

The ''[[Divorce Act]]'' is the law that deals with marriage breakdown in Canada. It only applies to people who are married to each other or who used to be married to each other. It talks about how married spouses get divorced and when divorce orders from another country are recognized here. It also talks about the care of children after separation (custody and access), child support and spousal support.

This section provides a top to bottom overview of the ''Divorce 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==

===Who does the ''Divorce Act'' apply to?===

The federal ''[[Divorce Act]]'' is the main Canadian law on marriage breakdown and divorce. It only applies to couples who are or were married to each other, regardless of where they were married. If people in other kinds of relationships want orders about the care of children, child support, or spousal support and can't make an agreement, they must apply under provincial legislation. In British Columbia, that law is the ''[[Family Law Act]]''.

If married spouses have started a court proceeding under the ''[[Divorce Act]]'', other people ― like grandparents, other family members, and children's other caregivers ― can use the ''[[Divorce Act]]'' to ask for orders about the care of the spouses' children, but they must get the court's permission first.

===What issues does the ''Divorce Act'' cover?===

The ''[[Divorce Act]]'' talks about:

*divorce and foreign divorce orders,
*custody of children,
*access to children,
*paying child support,
*paying spousal support, and
*changing orders about custody, access, child support, and spousal support.

====What is "corollary relief"?====

You may have heard the term ''corollary relief'' used about court proceedings under the ''[[Divorce Act]]''. "Corollary" means something that is a consequence of something else. The primary subject of the ''[[Divorce Act]]'' is divorce. The other orders available under the act, about the care of children, child support and spousal support, stem from the court's ability to make a divorce order. These orders are ''corollary'' to the court's power over divorce and are sometimes called ''corollary relief'' or ''corollary orders''.

====What about annulment?====

When a marriage is ''annulled'', the marriage is cancelled as if the couple had never been married at all. A marriage can be annulled if there is a problem with the legal requirements of the marriage ceremony or the legal capacity of the parties to marry.

The ''[[Divorce Act]]'' doesn't deal with the annulment of marriages, only divorce. Annulment is governed by the common law and is nowhere near as easy to get as a divorce. The section on [[Marriage & Married Spouses]] in the [[Family Relationships]] chapter talks about when and how marriages can be annulled.

===When can a court proceeding under the ''Divorce Act'' start?===

A court proceeding for a divorce order can only start when one of the spouses has lived in the province or territory where the proceeding is started for at least one year. As long as this requirement is met, a court proceeding can be started as soon as the spouses have separated. If both spouses have moved to new provinces, the court proceeding must wait until the one-year residence requirement is satisfied.

===Which court can hear a proceeding under the ''Divorce Act''?===

If you are married and want to get divorced, you must start your court proceeding in the Supreme Court. Both the Provincial Court and the Supreme Court can hear court proceedings under the provincial ''[[Family Law Act]]''. However, only the Supreme Court has the jurisdiction to hear proceedings under the ''[[Divorce Act]]''.

===What happens if each spouse starts a court proceeding?===

If each spouse has started a court proceeding under the ''[[Divorce Act]]'', the court in which the first court proceeding was started can continue to deal with that proceeding, and the court proceeding that was started second is considered to be dropped. This can be very important where spouses live in different provinces.

If the two court proceedings were started same day, however, both proceedings will be transferred to the [http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Index Federal Court], and it's that court which will hear and decide the spouses' claims. The Federal Court is a trial court, like the Supreme Court of British Columbia, but is common to all of Canada.

===What about claims under the ''Family Law Act''?===

Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' talk about the care of children, child support, and spousal support. As a long a person is married, he or she can start a court proceeding about these issues under either law or under both laws at the same time. However, if orders about the division of property and debt, personal protection orders and financial protection orders, the parentage of a child or the use of the family home are required, those claims must be made under the ''Family Law Act''; see the section [[Family Law Act Basics|''Family Law Act'' Basics]] for more information.

====Child support====

The rules about child support are almost the same between the two laws, except that it can be easier to get child support from a stepparent under the ''[[Family Law Act]]''. The [[Child Support]] chapter talks about child support and when stepparents can be required to pay child support.

====Spousal support====

The rules about spousal support are very similar between the two laws, except that under the ''[[Family Law Act]]'' spousal support is also available to couples that aren't married to each other as long as they meet that act's definition of "spouse."

There's no limit to when claims for spousal support can be brought under the ''[[Divorce Act]]''. Under the ''[[Family Law Act]]'', however, spouses who are entitled to ask for spousal support must begin a court proceeding for spousal support within two years of the divorce order, if the couple were married, or within two years of separation, if the couple wasn't married, or they will be out of time.

====Children====

The two laws are the most different in terms of how they talk about children. The ''Divorce Act'' talks about ''spouses'' who have custody and access. The ''[[Family Law Act]]'' talks about ''guardians'' who have parental responsibilities and parenting time, and people who aren't guardians who have contact. I prefer how the ''[[Family Law Act]]'' deals with children. It's more focused on the rights and interests of children and less focused on the rights of parents.

Because the two systems are so different, even though a married spouse can make a claim under both laws, it's probably best to just pick one. It will be less confusing for the court and it will be less confusing for you.

==The law about divorce==

===Why will the court make a divorce order?===

Under s. 8(1) of the ''[[Divorce Act]]'', the court can make a divorce order only if the spouses' marriage has broken down. Under s. 8(2), there are three reasons why a marriage may have broken down:

*because the spouses have lived separate and apart for at least one year,
*because one spouse has committed adultery, and the adultery hasn't been forgiven by the other spouse, or
*because one spouse has treated the other with such cruelty that the spouses cannot continue to live together, and the cruelty hasn't been forgiven by the other spouse.

====Separation====

To get a divorce based on separation, the spouses must have lived separate and apart for one year.

The period of living separate and apart can pass while living under the same roof. However, the partnership quality of the relationship between the spouses — the "marriage-like" quality of their relationship — must have ended. In general, this means that the spouses have stopped sleeping together, eating meals together, doing chores for each other, and going out together as a couple.

Under s. 8(3), spouses can live together in an attempt to reconcile and resume married life for up to 90 days during the one-year period. However, if the couple lives together for a total period of more than 90 days, the clock resets and the spouses must wait for a new one-year period to end before asking for a divorce order.

====Adultery====

To get a divorce based on adultery, the spouse asking for the divorce has to be able to prove that his or her spouse had sex with someone else, without his or her permission. The evidence the court will require isn't circumstantial evidence, like a hotel receipt, but direct evidence, like a photograph or the spouse's admission.

You can't ask for a divorce because of your own adultery, only the adultery of your spouse.

====Cruelty====

To get a divorce based on cruelty, the spouse asking for the divorce has to be able to prove that he or she was treated with such mental or physical cruelty that it was impossible to continue living together. The evidence of cruelty that the court will require must come from someone else, like a doctor or a psychologist. The spouse's own evidence won't do.

You can't ask for a divorce because of your own cruelty, only the cruelty of your spouse.

====The effect of forgiveness====

The court will not grant a divorce based on adultery or cruelty if the adultery or cruelty has been forgiven, or "condoned." If the bad behaviour has been condoned, the marital relationship is considered not to have broken down, and the court won't make a divorce order.

===When can the court make the divorce order?===

If the claim for the divorce is based on separation, neither spouse can apply for the divorce order until one year has passed from the date of separation. The one-year period doesn't run from the date the court proceeding is started; it runs from the date of separation.

The nice thing about divorce claims based on adultery or cruelty is that the application for the divorce order can be made right away, without having to wait for one year. However, the adultery or cruelty must be proven, and if more than a year has passed by the time the court is asked to make the divorce order, the court may very well refuse to make the divorce order for a reason other than the spouses' separation.

The process for getting a divorce order is described in detail in the [[Divorce]] section of the chapter [[Separation & Divorce]].

===What about child support?===

The court may not make a divorce order unless it is satisfied that adequate arrangements have been made for child support. Section 11(1)(b) of the ''[[Divorce Act]]'' says that the court has the duty to:

<blockquote><tt>satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made</tt></blockquote>

What this means is that the court will usually refuse to make a divorce order unless child support is being paid under a court order or a separation agreement in the amount that would normally be required by the [[:Child Support Guidelines]]. However, the court may be prepared to consider other terms of an order or agreement that provide a direct or indirect benefit to the children in deciding whether the amount of support being paid is reasonable. This is sometimes hard to prove.

Information about how child support is calculated is available in the [[Child Support]] chapter, particularly in the sections on the [[Child Support Guidelines|Guidelines]] and the [[Exceptions_to_the_Child_Support_Guidelines|Exceptions to the Guidelines]].

===When is a divorce order effective?===

Under s. 12(1), a divorce order takes effect on the 31st day after the divorce order is made. That's because the deadline to make an appeal of a ''Divorce Act'' order is the 30th day after the order is made, and the appeal deadline needs to pass, without an appeal being brought, before the spouses will be considered divorced.

===What's the legal effect of a divorce order?===

A divorce order terminates a marriage. When a marriage is terminated, the parties stop being "spouses" and lose all of the obligations and benefits that come from being a spouse. A divorced person is free to marry again, but loses things like the right to claim a share of the other spouse's estate, the right to coverage under the spouse's medical and dental benefits, the right to share in the spouse's future CPP and pension earnings, and the right to receive death benefits.

===What if spouses wait to get a divorce order?===

Getting a divorce is often a low priority for spouses and some spouses wait for many years before starting a court proceeding for divorce. This isn't unreasonable, and usually happens for one of three reasons:

*the cost of getting a divorce can be too high,
*other issues, like the care of children or the division of property and debt, take priority, or
*a spouse's religion discourages or prohibits divorce.

However, there can be some complications...

====No divorce without a divorce order====

Firstly, no matter how long spouses wait to get divorced, they will always be married to each other until one of them dies or they finally get a divorce order. There's no such thing as an automatic divorce; the passage of time won't do it. You actually have to get that order.

====New relationships====

Secondly, separated spouses often move on with their lives, meet new people and get into new romantic relationships without having been divorced. There's nothing wrong with this and the new relationship won't stop the married person from getting a divorce when the time is finally ripe.

However, if it takes too long and a separated spouse moves in to live with someone new, it's entirely possible that the spouse can find him- or herself in a new spousal relationship without being divorced. (Remember that under the ''[[Family Law Act]]'' people can become spouses without getting married.) If that relationship doesn't work out, the spouse may wind up being obliged to pay spousal support to two spouses!

===Are foreign divorce orders valid in Canada?===

Under s. 22 of the ''[[Divorce Act]]'', a divorce order made outside of Canada will be recognized in Canada, and be effective to determine a person's marital status in this country, as long as at least one of the spouses lived in the country that made the divorce order for at least one year before the divorce proceeding was started in that country.

==The law about children==

===Who is a "child of the marriage?"===

The ''[[Divorce Act]]'' talks about "children of the marriage" rather than just children. A child of the marriage is a child of one or both spouses who is under the provincial age of majority, or older but "unable to withdraw" from the spouses' care. In British Columbia, the age of majority is 19. In other provinces, like Alberta and Manitoba, the age of majority is 18.

Although a court can make orders about the care of children who are under the age of majority, in practice the court usually won't make orders involving children who are close to the age of majority. Children who are that old are usually old enough to make decisions for themselves about where they'd like to live, and the court will usually respect their decisions.

===How are decisions about children made?===

Section 16(8) of the ''[[Divorce Act]]'' says that the court should take "only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child" into account when making decisions about children. The act doesn't go into much further detail than this except to say, at s. 16(10), that:

<blockquote><tt>the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.</tt></blockquote>

This doesn't mean that it is ''always'' best for a child to have an equal or near-equal amount of time with each spouse. It means that the court should give the child as much time with each spouse ''as is consistent'' with the child's best interests. That might be an equal or a near-equal amount of time, or it might be every other weekend, or it might be no time at all.

===Who can ask for orders about custody and access?===

Under s. 16(1) of the ''[[Divorce Act]]'', a spouse or "any other person" can apply to court for an order that he or she has custody of or access to a child. However, a person who is not a spouse cannot make the application without first getting the court's permission.

===What rights does custody give?===

"Custody" sometimes means the house where the children live most of the time, but it can also mean having the right to get information about the children's activities, schooling and wellbeing, as well as the right to participate in making decisions about those things. Under s. 16(4) of the ''[[Divorce Act]]'', the court can order that one or more persons have custody of a child.

*When only one person has custody, that person has ''sole custody'' of the child.
*When more than one person has custody, they together have ''joint custody'' of the child.

A spouse with sole custody has the child's home and is responsible for the child on a day-to-day basis.

Joint custody does not always mean that the spouses share the child's time equally or near-equally. Joint custody means that both spouses are expected to play a role in raising their children and in making decisions about their care and upbringing; whether they share the children's time equally or have very unequal amounts of time with the children is another question.

===What rights does access give?===

Access usually refers to the parenting schedule of the spouse who sees the child for the least amount of time, or to the parenting schedule of someone who isn't a spouse. More importantly, under s. 16(5) of the ''Divorce Act'', a spouse who has access also has:

<blockquote><tt>the right to make inquiries, and to be given information, as to the health, education and welfare of the child.</tt></blockquote>

This provision doesn't apply to people who are not spouses and have access to the child under a ''Divorce Act'' order.

===How are orders for custody and access enforced?===

''Divorce Act'' orders for custody and access have effect throughout Canada, and are enforced under the laws of each province. In British Columbia, ''Divorce Act'' orders can be enforced by a spouse under the rules of court and the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

===How are orders for custody and access changed?===

Under s. 17(1), a spouse or another person can apply to change an order for custody or access, but someone who isn't a spouse has to first get permission from the court.

The legal test that must be met before the court changes an order for custody or access is at s. 17(5):

<blockquote><tt>Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote>

In other words, someone who wants to change an order must first show that there has been a change in circumstances. Then, when the court is deciding on a new order, it must consider the best interests of the child in light of that change.

==The law about child support==

===Who is a "child of the marriage?"===

The ''[[Divorce Act]]'' talks about "children of the marriage." A child is a child of two spouses who is under the age of 19, the age of majority in British Columbia, or 19 and older but "unable to withdraw" from the spouses' care. Normally, adult children who are unable to withdraw are children who are ill or disabled, or are going to school full-time, and are unable to support themselves as a result.

===Who is a spouse?===

In the context of child support, "spouse" includes a spouse who is a parent of a child and a spouse who "stands in the place of a parent" for a child. In other words, ''spouse'' includes spouses who are ''stepparents''.

===Who is required to pay child support?===

Section 15.1(1) of the ''[[Divorce Act]]'' says that a court may "make an order requiring a spouse to pay for the support of any or all children of the marriage." The act doesn't say that it's ''parents'' who have to pay; it's ''spouses'' who have to pay, and "spouse" includes stepparents.

===Who can ask for child support?===

Under s. 15.1(1) only spouses can ask for child support orders. If someone other than a spouse has custody of a child and needs child support, the person will need to apply for child support under the provincial ''[[Family Law Act]]''.

===How is the amount of child support calculated?===

Child support is determined by the [[Child Support Guidelines]]. Most of the time, child support his easy to figure out: you just look up the amount payable in the tables attached to the Guidelines based on the payor’s income and the number of children support is being paid for. Calculating 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,
*the payor is a stepparent,
*one or more children live mostly with each spouse, called ''split custody'',
*the spouses share the children’s time equally or almost equally, called ''shared custody'', or
*the payment of the tables amount would cause "undue hardship" to either the recipient of child support or the payor of child support.

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

===How is child support paid?===

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.

However child support gets paid, it's important for the payor to keep a record of how much was paid and when it was paid, perhaps from receipts provided by the recipient, from cancelled cheques or from bank statements. This can help prevent arguments about whether a payment was late or missed altogether.

===How are orders for child support changed?===

Under s. 17(4) of the ''[[Divorce Act]]'', the court can change an order for child support if there has been a change in circumstances that would result in a different amount of support being paid. Typical changes are increases or a decreases in the payor's income, or changes in how the children's time is divided between the spouses.

====When both spouses live in British Columbia====

To change a British Columbia ''[[Divorce Act]]'' child support order when both spouses live here, the applicant must file a Notice of Application in the original court proceeding. The Supreme Court Family Rules have special provisions for applications to change final orders.

====When a spouse lives outside of British Columbia====

To change a British Columbia ''[[Divorce Act]]'' child support order when the respondent lives in another province, the applicant first applies here, in British Columbia, for a ''provisional order'' under s. 18. If the court makes a provisional order, it will send the order to the province where the respondent lives, and the court there will have a hearing to ''confirm'' the provisional order under s. 19.

The court at the confirmation hearing may:

*confirm the provisional order,
*confirm the provisional order with some changes,
*refuse to confirm the provisional order, or
*send the application back to British Columbia for more information.

A provisional order has no effect until and unless it is confirmed.

==The law about spousal support==

===Who is entitled to ask for spousal support?===

Only spouses can ask for spousal support. Under s. 15 of the ''[[Divorce Act]]'', "spouse" includes ''former spouses'', spouses who have been divorced. There is no time limit on when a spouse or former spouse can ask for spousal support.

A spouse’s entitlement to spousal support is determined based on factors set out at s. 15.2(4):

<blockquote><tt>In making an order [for spousal support], the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time the spouses cohabited; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the functions performed by each spouse during cohabitation; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) any order, agreement or arrangement relating to support of either spouse.</tt></blockquote></blockquote>

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 you'll get it. You must also show that you are entitled to spousal support.

===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 set out at s. 15.2(6):

<blockquote><tt>An order [for spousal support] should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. </tt></blockquote></blockquote>

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 Guidelines is not a law like the [[Child Support Guidelines]] and is not mandatory; the ''[[Divorce Act]]'' doesn't even mention the Advisory Guidelines. However, the Advisory Guidelines can be very helpful to figure out how much should be paid and how long it should be paid for.

===Is a spouse’s conduct taken into account?===

Under the ''[[Divorce Act]]'', the court is not allowed to consider a spouse’s behaviour when making an order about spousal support.

===How is spousal support paid?===

Most of the time, spousal support is paid every month, usually on the first day of the month. If child support is also being paid, child support and spousal support payments can be staggered if that's fair to both parties. It is also 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, repeating 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.

===How are orders for spousal support changed?===

Under s. 17(4.1) of the ''[[Divorce Act]]'', the court can change an order for spousal support if there has been a:

<blockquote><tt>change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order</tt></blockquote>

When the court varies an order for spousal support, it must take the change of circumstances into account and consider, under s. 17(7), the same factors about amount and duration as it considered in making the original order.

====When both spouses live in British Columbia====

To change a British Columbia ''[[Divorce Act]]'' spousal support order when both spouses live here, the applicant must file a Notice of Application in the original court proceeding. The [http://canlii.ca/t/8mcr Supreme Court Family Rules] have special provisions for applications to change final orders.

====When a spouse lives outside of British Columbia====

To change a British Columbia ''[[Divorce Act]]'' spousal support order when the respondent lives in another province, the applicant first applies here, in British Columbia, for a ''provisional order'' under s. 18. If the court makes a provisional order, it will send the order to the province where the respondent lives, and the court there will have a hearing to ''confirm'' the provisional order under s. 19.

The court at the confirmation hearing may:

*confirm the provisional order,
*confirm the provisional order with some changes,
*refuse to confirm the provisional order, or
*send the application back to British Columbia for more information.

A provisional order has no effect until and unless it is confirmed.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/7vbw Divorce Act]''

===Links===

* [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/pub/divorce/index.html Divorce Law Questions & Answers], from the Department of Justice
* [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/pub/book-livre/index.html What happens next? Information for kids about separation and divorce], from the Department of Justice
*[http://www.phac-aspc.gc.ca/publicat/mh-sm/divorce/index-eng.php Because Life Goes On… Helping children and youth live with separation and divorce], from the Public Health Agency of Canada

{{REVIEWED | reviewer = [[JP Boyd]], August 8, 2017}}

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[[Category:JP Boyd on Family Law]]

Divorce Act Basics

2017-08-13T18:33:27Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC}}

The ''[[Divorce Act]]'' is the law that deals with marriage breakdown in Canada. It only applies to people who are married to each other or who used to be married to each other. It talks about how married spouses get divorced and when divorce orders from another country are recognized here. It also talks about the care of children after separation (custody and access), child support and spousal support.

This section provides a top to bottom overview of the ''Divorce 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==

===Who does the ''Divorce Act'' apply to?===

The federal ''[[Divorce Act]]'' is the main Canadian law on marriage breakdown and divorce. It only applies to couples who are or were married to each other, regardless of where they were married. If people in other kinds of relationships want orders about the care of children, child support, or spousal support and can't make an agreement, they must apply under provincial legislation. In British Columbia, that law is the ''[[Family Law Act]]''.

If married spouses have started a court proceeding under the ''[[Divorce Act]]'', other people ― like grandparents, other family members, and children's other caregivers ― can use the ''[[Divorce Act]]'' to ask for orders about the care of the spouses' children, but they must get the court's permission first.

===What issues does the ''Divorce Act'' cover?===

The ''[[Divorce Act]]'' talks about:

*divorce and foreign divorce orders,
*custody of children,
*access to children,
*paying child support,
*paying spousal support, and
*changing orders about custody, access, child support, and spousal support.

====What is corollary relief?====

You may have heard the term ''corollary relief'' used about court proceedings under the ''[[Divorce Act]]''. "Corollary" means something that is a consequence of something else. The primary subject of the ''[[Divorce Act]]'' is divorce. The other orders available under the act, about the care of children, child support and spousal support, stem from the court's ability to make a divorce order. These orders are ''corollary'' to the court's power over divorce and are sometimes called ''corollary relief'' or ''corollary orders''.

====What about annulment?====

When a marriage is ''annulled'', the marriage is cancelled as if the couple had never been married at all. A marriage can be annulled if there is a problem with the legal requirements of the marriage ceremony or the legal capacity of the parties to marry.

The ''[[Divorce Act]]'' doesn't deal with the annulment of marriages, only divorce. Annulment is governed by the common law and is nowhere near as easy to get as a divorce. The section on [[Marriage & Married Spouses]] in the [[Family Relationships]] chapter talks about when and how marriages can be annulled.

===When can a court proceeding under the ''Divorce Act'' start?===

A court proceeding for a divorce order can only start when one of the spouses has lived in the province or territory where the proceeding is started for at least one year. As long as this requirement is met, a court proceeding can be started as soon as the spouses have separated. If both spouses have moved to new provinces, the court proceeding must wait until the one-year residence requirement is satisfied.

===Which court can hear a proceeding under the ''Divorce Act''?===

If you are married and want to get divorced, you must start your court proceeding in the Supreme Court. Both the Provincial Court and the Supreme Court can hear court proceedings under the provincial ''[[Family Law Act]]''. However, only the Supreme Court has the jurisdiction to hear proceedings under the ''[[Divorce Act]]''.

===What happens if each spouse starts a court proceeding?===

If each spouse has started a court proceeding under the ''[[Divorce Act]]'', the court in which the first court proceeding was started can continue to deal with that proceeding, and the court proceeding that was started second is considered to be dropped. This can be very important where spouses live in different provinces.

If the two court proceedings were started same day, however, both proceedings will be transferred to the [http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Index Federal Court], and it's that court which will hear and decide the spouses' claims. The Federal Court is a trial court, like the Supreme Court of British Columbia, but is common to all of Canada.

===What about claims under the ''Family Law Act''?===

Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' talk about the care of children, child support, and spousal support. As a long a person is married, they can start a court proceeding about these issues under either law or under both laws at the same time. However, if orders about the division of property and debt, personal protection orders and financial protection orders, the parentage of a child or the use of the family home are required, those claims must be made under the ''Family Law Act''; see the section [[Family Law Act Basics|''Family Law Act'' Basics]] for more information.

====Child support====

The rules about child support are almost the same between the two laws, except that it can be easier to get child support from a stepparent under the ''[[Family Law Act]]''. The [[Child Support]] chapter talks about child support and when step-parents can be required to pay child support.

====Spousal support====

The rules about spousal support are very similar between the two laws, except that under the ''[[Family Law Act]]'' spousal support is also available to couples that aren't married to each other as long as they meet that act's definition of "spouse."

There's no limit to when claims for spousal support can be brought under the ''[[Divorce Act]]''. Under the ''[[Family Law Act]]'', however, spouses who are entitled to ask for spousal support must begin a court proceeding for spousal support within two years of the divorce order, if the couple were married, or within two years of separation, if the couple wasn't married, or they will be out of time.

====Children====

The two laws are the most different in terms of how they talk about children. The ''Divorce Act'' talks about ''spouses'' who have custody and access. The ''[[Family Law Act]]'' talks about ''guardians'' who have parental responsibilities and parenting time, and people who aren't guardians who have contact. I prefer how the ''[[Family Law Act]]'' deals with children. It's more focused on the rights and interests of children and less focused on the rights of parents.

Because the two systems are so different, even though a married spouse can make a claim under both laws, it's probably best to just pick one. It will be less confusing for the court and it will be less confusing for you.

==The law about divorce==

===Why will the court make a divorce order?===

Under s. 8(1) of the ''[[Divorce Act]]'', the court can make a divorce order only if the spouses' marriage has broken down. Under s. 8(2), there are three reasons why a marriage may have broken down:

*because the spouses have lived separate and apart for at least one year,
*because one spouse has committed adultery, and the adultery hasn't been forgiven by the other spouse, or
*because one spouse has treated the other with such cruelty that the spouses cannot continue to live together, and the cruelty hasn't been forgiven by the other spouse.

====Separation====

To get a divorce based on separation, the spouses must have lived separate and apart for one year.

The period of living separate and apart can pass while living under the same roof. However, the partnership quality of the relationship between the spouses — the ''marriage-like'' quality of their relationship — must have ended. In general, this means that the spouses have stopped sleeping together, eating meals together, doing chores for each other, and going out together as a couple.

Under s. 8(3), spouses can live together in an attempt to reconcile and resume married life for up to 90 days during the one-year period. However, if the couple lives together for a total period of more than 90 days, the clock resets and the spouses must wait for a new one-year period to end before asking for a divorce order.

====Adultery====

To get a divorce based on adultery, the spouse asking for the divorce has to be able to prove that their spouse had sex with someone else, without their permission. The evidence the court will require isn't circumstantial evidence, like a hotel receipt, but direct evidence, like a photograph or the spouse's admission.

You can't ask for a divorce because of your own adultery, only the adultery of your spouse.

====Cruelty====

To get a divorce based on cruelty, the spouse asking for the divorce has to be able to prove that they were treated with such mental or physical cruelty that it was impossible to continue living together. The evidence of cruelty that the court will require must come from someone else, like a doctor or a psychologist. The spouse's own evidence won't do.

You can't ask for a divorce because of your own cruelty, only the cruelty of your spouse.

====The effect of forgiveness====

The court will not grant a divorce based on adultery or cruelty if the adultery or cruelty has been forgiven, or condoned. If the bad behaviour has been condoned, the marital relationship is considered not to have broken down, and the court won't make a divorce order.

===When can the court make the divorce order?===

If the claim for the divorce is based on separation, neither spouse can apply for the divorce order until one year has passed from the date of separation. The one-year period doesn't run from the date the court proceeding is started; it runs from the date of separation.

The nice thing about divorce claims based on adultery or cruelty is that the application for the divorce order can be made right away, without having to wait for one year. However, the adultery or cruelty must be proven, and if more than a year has passed by the time the court is asked to make the divorce order, the court may very well refuse to make the divorce order for a reason other than the spouses' separation.

The process for getting a divorce order is described in detail in the [[Divorce]] section of the chapter [[Separation & Divorce]].

===What about child support?===

The court may not make a divorce order unless it is satisfied that adequate arrangements have been made for child support. Section 11(1)(b) of the ''[[Divorce Act]]'' says that the court has the duty to:

<blockquote><tt>satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made</tt></blockquote>

What this means is that the court will usually refuse to make a divorce order unless child support is being paid under a court order or a separation agreement in the amount that would normally be required by the [[:Child Support Guidelines]]. However, the court may be prepared to consider other terms of an order or agreement that provide a direct or indirect benefit to the children in deciding whether the amount of support being paid is reasonable. This is sometimes hard to prove.

Information about how child support is calculated is available in the [[Child Support]] chapter, particularly in the sections on the [[Child Support Guidelines|Guidelines]] and the [[Exceptions_to_the_Child_Support_Guidelines|Exceptions to the Guidelines]].

===When is a divorce order effective?===

Under s. 12(1), a divorce order takes effect on the 31st day after the divorce order is made. That's because the deadline to make an appeal of a ''Divorce Act'' order is the 30th day after the order is made, and the appeal deadline needs to pass, without an appeal being brought, before the spouses will be considered divorced.

===What's the legal effect of a divorce order?===

A divorce order terminates (ends) a marriage. When a marriage is terminated, the parties stop being spouses and lose all of the obligations and benefits that come from being a spouse. A divorced person is free to marry again, but loses things like the right to claim a share of the other spouse's estate, the right to coverage under the spouse's medical and dental benefits, the right to share in the spouse's future CPP and pension earnings, and the right to receive death benefits.

===What if spouses wait to get a divorce order?===

Getting a divorce is often a low priority for spouses and some spouses wait for many years before starting a court proceeding for divorce. This isn't unreasonable, and usually happens for one of three reasons:

*the cost of getting a divorce can be too high,
*other issues, like the care of children or the division of property and debt, take priority, or
*a spouse's religion discourages or prohibits divorce.

However, there can be some complications...

====No divorce without a divorce order====

Firstly, no matter how long spouses wait to get divorced, they will always be married to each other until one of them dies or they finally get a divorce order. There's no such thing as an automatic divorce; the passage of time won't do it. You actually have to get that order.

====New relationships====

Secondly, separated spouses often move on with their lives, meet new people and get into new romantic relationships without having been divorced. There's nothing wrong with this and the new relationship won't stop the married person from getting a divorce when the time is finally ripe.

However, if it takes too long and a separated spouse moves in to live with someone new, it's entirely possible that the spouse can find themself in a new spousal relationship without being divorced. (Remember that under the ''[[Family Law Act]]'' people can become spouses without getting married.) If that relationship doesn't work out, the spouse may wind up being obliged to pay spousal support to two spouses!

===Are foreign divorce orders valid in Canada?===

Under s. 22 of the ''[[Divorce Act]]'', a divorce order made outside of Canada will be recognized in Canada, and be effective to determine a person's marital status in this country, as long as at least one of the spouses lived in the country that made the divorce order for at least one year before the divorce proceeding was started in that country.

==The law about children==

===Who is a ''child of the marriage''?===

The ''[[Divorce Act]]'' talks about children of the marriage rather than just children. A child of the marriage is a child of one or both spouses who is under the provincial age of majority, or older but ''unable to withdraw'' from the spouses' care. In British Columbia, the age of majority is 19. In other provinces, like Alberta and Manitoba, the age of majority is 18.

Although a court can make orders about the care of children who are under the age of majority, in practice the court usually won't make orders involving children who are close to the age of majority. Children who are that old are usually old enough to make decisions for themselves about where they'd like to live, and the court will usually respect their decisions.

===How are decisions about children made?===

Section 16(8) of the ''[[Divorce Act]]'' says that the court should take "only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child" into account when making decisions about children. The act doesn't go into much further detail than this except to say, at s. 16(10), that:

<blockquote><tt>the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.</tt></blockquote>

This doesn't mean that it is ''always'' best for a child to have an equal or near-equal amount of time with each spouse. It means that the court should give the child as much time with each spouse ''as is consistent'' with the child's best interests. That might be an equal or a near-equal amount of time, or it might be every other weekend, or it might be no time at all.

===Who can ask for orders about custody and access?===

Under s. 16(1) of the ''[[Divorce Act]]'', a spouse or ''any other person'' can apply to court for an order that they have custody of or access to a child. However, a person who is not a spouse cannot make the application without first getting the court's permission.

===What rights does custody give?===

''Custody'' sometimes means the house where the children live most of the time, but it can also mean having the right to get information about the children's activities, schooling and well-being, as well as the right to participate in making decisions about those things. Under s. 16(4) of the ''[[Divorce Act]]'', the court can order that one or more persons have custody of a child.

*When only one person has custody, that person has ''sole custody'' of the child.
*When more than one person has custody, they together have ''joint custody'' of the child.

A spouse with sole custody has the child's home and is responsible for the child on a day-to-day basis.

Joint custody does not always mean that the spouses share the child's time equally or near-equally. Joint custody means that both spouses are expected to play a role in raising their children and in making decisions about their care and upbringing; whether they share the children's time equally or have very unequal amounts of time with the children is another question.

===What rights does access give?===

Access usually refers to the parenting schedule of the spouse who sees the child for the least amount of time, or to the parenting schedule of someone who isn't a spouse. More importantly, under s. 16(5) of the ''Divorce Act'', a spouse who has access also has:

<blockquote><tt>the right to make inquiries, and to be given information, as to the health, education and welfare of the child.</tt></blockquote>

This provision doesn't apply to people who are not spouses and have access to the child under a ''Divorce Act'' order.

===How are orders for custody and access enforced?===

''Divorce Act'' orders for custody and access have effect throughout Canada, and are enforced under the laws of each province. In British Columbia, ''Divorce Act'' orders can be enforced by a spouse under the rules of court and the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

===How are orders for custody and access changed?===

Under s. 17(1), a spouse or another person can apply to change an order for custody or access, but someone who isn't a spouse has to first get permission from the court.

The legal test that must be met before the court changes an order for custody or access is at s. 17(5):

<blockquote><tt>Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote>

In other words, someone who wants to change an order must first show that there has been a change in circumstances. Then, when the court is deciding on a new order, it must consider the best interests of the child in light of that change.

==The law about child support==

===Who is a ''child of the marriage''?===

The ''[[Divorce Act]]'' talks about ''children of the marriage''. A child is a child of two spouses who is under the age of 19, the age of majority in British Columbia, or 19 and older but unable to withdraw from the spouses' care. Normally, adult children who are unable to withdraw are children who are ill or disabled, or are going to school full-time, and are unable to support themselves as a result.

===Who is a spouse?===

In the context of child support, ''spouse'' includes a spouse who is a parent of a child and a spouse who "stands in the place of a parent" for a child. In other words, ''spouse'' includes spouses who are ''step-parents''.

===Who is required to pay child support?===

Section 15.1(1) of the ''[[Divorce Act]]'' says that a court may "make an order requiring a spouse to pay for the support of any or all children of the marriage." The act doesn't say that it's ''parents'' who have to pay; it's ''spouses'' who have to pay, and spouse includes step-parents.

===Who can ask for child support?===

Under s. 15.1(1) only spouses can ask for child support orders. If someone other than a spouse has custody of a child and needs child support, the person will need to apply for child support under the provincial ''[[Family Law Act]]''.

===How is the amount of child support calculated?===

Child support is determined by the [[Child Support Guidelines|Guidelines]] which you can find in the [[Child Support]] chapter of this resource. Most of the time, child support his easy to figure out: you just look up the amount payable in the tables attached to the Guidelines based on the payor’s income and the number of children support is being paid for. Calculating 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,
*the payor is a stepparent,
*one or more children live mostly with each spouse, called ''split custody'',
*the spouses share the children’s time equally or almost equally, called ''shared custody'', or
*the payment of the tables amount would cause "undue hardship" to either the recipient of child support or the payor of child support.

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

===How is child support paid?===

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.

However child support gets paid, it's important for the payor to keep a record of how much was paid and when it was paid, perhaps from receipts provided by the recipient, from cancelled cheques or from bank statements. This can help prevent arguments about whether a payment was late or missed altogether.

===How are orders for child support changed?===

Under s. 17(4) of the ''[[Divorce Act]]'', the court can change an order for child support if there has been a change in circumstances that would result in a different amount of support being paid. Typical changes are increases or a decreases in the payor's income, or changes in how the children's time is divided between the spouses.

====When both spouses live in British Columbia====

To change a British Columbia ''[[Divorce Act]]'' child support order when both spouses live here, the applicant must file a Notice of Application in the original court proceeding. The Supreme Court Family Rules have special provisions for applications to change final orders.

====When a spouse lives outside of British Columbia====

To change a British Columbia ''[[Divorce Act]]'' child support order when the respondent lives in another province, the applicant first applies here, in British Columbia, for a ''provisional order'' under s. 18. If the court makes a provisional order, it will send the order to the province where the respondent lives, and the court there will have a hearing to ''confirm'' the provisional order under s. 19.

The court at the confirmation hearing may:

*confirm the provisional order,
*confirm the provisional order with some changes,
*refuse to confirm the provisional order, or
*send the application back to British Columbia for more information.

A provisional order has no effect until and unless it is confirmed.

==The law about spousal support==

===Who is entitled to ask for spousal support?===

Only spouses can ask for spousal support. Under s. 15 of the ''[[Divorce Act]]'', spouse includes ''former spouses'', spouses who have been divorced. There is no time limit on when a spouse or former spouse can ask for spousal support.

A spouse’s entitlement to spousal support is determined based on factors set out at s. 15.2(4):

<blockquote><tt>In making an order [for spousal support], the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time the spouses cohabited; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the functions performed by each spouse during cohabitation; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) any order, agreement or arrangement relating to support of either spouse.</tt></blockquote></blockquote>

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 you'll get it. You must also show that you are entitled to spousal support.

===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 set out at s. 15.2(6):

<blockquote><tt>An order [for spousal support] should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. </tt></blockquote></blockquote>

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 Guidelines is not a law like the [[Child Support Guidelines]] and is not mandatory; the ''[[Divorce Act]]'' doesn't even mention the Advisory Guidelines. However, the Advisory Guidelines can be very helpful to figure out how much should be paid and how long it should be paid for.

===Is a spouse’s conduct taken into account?===

Under the ''[[Divorce Act]]'', the court is not allowed to consider a spouse’s behaviour when making an order about spousal support.

===How is spousal support paid?===

Most of the time, spousal support is paid every month, usually on the first day of the month. If child support is also being paid, child support and spousal support payments can be staggered if that's fair to both parties. It is also 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, repeating 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 their 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 their 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.

===How are orders for spousal support changed?===

Under s. 17(4.1) of the ''[[Divorce Act]]'', the court can change an order for spousal support if there has been a:

<blockquote><tt>change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order</tt></blockquote>

When the court varies an order for spousal support, it must take the change of circumstances into account and consider, under s. 17(7), the same factors about amount and duration as it considered in making the original order.

====When both spouses live in British Columbia====

To change a British Columbia ''[[Divorce Act]]'' spousal support order when both spouses live here, the applicant must file a Notice of Application in the original court proceeding. The [http://canlii.ca/t/8mcr Supreme Court Family Rules] have special provisions for applications to change final orders.

====When a spouse lives outside of British Columbia====

To change a British Columbia ''[[Divorce Act]]'' spousal support order when the respondent lives in another province, the applicant first applies here, in British Columbia, for a ''provisional order'' under s. 18. If the court makes a provisional order, it will send the order to the province where the respondent lives, and the court there will have a hearing to ''confirm'' the provisional order under s. 19.

The court at the confirmation hearing may:

*confirm the provisional order,
*confirm the provisional order with some changes,
*refuse to confirm the provisional order, or
*send the application back to British Columbia for more information.

A provisional order has no effect until and unless it is confirmed.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/7vbw Divorce Act]''

===Links===

* [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/pub/divorce/index.html Divorce Law Questions & Answers], from the Department of Justice
* [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/pub/book-livre/index.html What happens next? Information for kids about separation and divorce], from the Department of Justice
*[http://www.phac-aspc.gc.ca/publicat/mh-sm/divorce/index-eng.php Because Life Goes On… Helping children and youth live with separation and divorce], from the Public Health Agency of Canada

{{REVIEWED | reviewer = [[JP Boyd]], August 8, 2017}}

{{JP Boyd on Family Law Navbox|type=started}}

{{Creative Commons for JP Boyd}}
[[Category:JP Boyd on Family Law]]

The Legislation on Family Law

2017-08-13T18:11:01Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC}}

The most important statutes in family law and divorce law are British Columbia's ''[[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]]. You may also run into other provincial and federal laws, like the ''[http://canlii.ca/t/8481 Name Act]'', the ''[http://canlii.ca/t/848q Partition of Property Act]'' or the ''[http://canlii.ca/t/7vfd Canada Pension Plan]'', which weren't written just for family law disputes but still relate to your situation. There are also some international treaties that might apply, most commonly the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on child abduction] and the [http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx UN Convention on the Rights of the Child].

This section describes the basic legislation on family and divorce law, and briefly reviews some of the important secondary legislation and treaties touching on family law issues.

==Two important statutes, one important regulation and one influential paper==

The ''[[Divorce Act]]'', the provincial ''[[Family Law Act]]'' and the federal [[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.

Only the ''[[Divorce Act]]'' deals with divorce. Only the ''[[Family Law Act]]'' deals with the guardianship of children and the division of property and debts. Both acts deal with the care of children, children's parenting schedules, child support, and spousal support. Both laws use the [[Child Support Guidelines]] to calculate child support and the payment of children's special expenses.

One of the most important distinctions between the two laws, as will be seen below, lies in how they define important terms like ''spouse'', ''parent'' and ''child''. Depending on the particular law you're dealing with, you may fall inside these definitions or outside of them, and that can have an important impact on your family law problem and the options available to you.

===The ''Divorce Act''===
{{:Divorce Act}}
===The ''Family Law Act''===
{{:Family Law Act}}

===The Child Support Guidelines===
The [[Child Support Guidelines]], often referred to as just the ''Guidelines'', is a federal regulation that standardizes child support orders throughout Canada, except in Quebec. The Guidelines talk about how income is calculated and how children's 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 Guidelines'', 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]] in the section [[The Spousal Support Advisory Guidelines]].

==Other legislation related to family law issues==

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 property, wills and estates, and name changes.

===Marriage===

The federal ''[http://canlii.ca/t/7vq2 Marriage (Prohibited Degrees) Act]'' sets out the degrees of consanguinity — relatedness by blood — a couple cannot have if they are to marry each other. The federal ''[http://canlii.ca/t/7w02 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 ''[http://canlii.ca/t/7vb7 Income Tax Act]''.

The provincial ''[http://canlii.ca/t/846b 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.

More information about marrying and marriage, including invalid marriages, is available in the [[Marriage & Married Spouses]] section in the [[Family Relationships]] chapter.

===Children===

The provincial ''[http://canlii.ca/t/84gw Age of Majority Act]'' sets the age of majority at 19. The provincial ''[http://canlii.ca/t/8446 Infants Act]'' describes the legal capacity of children, such as their ability to enter into legally binding contracts or marriage settlements.

The provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' deals with such things as who can give a child up for adoption, 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 ''[http://canlii.ca/t/84kw 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.

===Child protection===

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 [http://www.rcybc.ca Representative for Children and Youth], operating under the ''[http://canlii.ca/t/84nt 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 youth 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 ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]'' gives the government, specifically the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development], the power to apprehend 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 support obligations===

The provincial ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' establishes the [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program], a government agency with the authority to enforce support orders, and sets the extent of that authority. The provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' sets out the ways in which money awarded under a judgment can be collected, such as by liens against property, the garnishment of wages, and so forth.

The provincial ''[http://canlii.ca/t/84l3 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.

===Real property===

The provincial ''[http://canlii.ca/t/8451 Land (Spouse Protection) Act]'' protects the rights of married spouses and unmarried spouses to their interest in the family home by allowing them to file an entry on the title of the property, but the protection ends once the spousal relationship ends.

The provincial ''[http://canlii.ca/t/8456 Land Title Act]'' deals with all aspects of the ownership and transfer of real property in British Columbia, including the conditions of holding valid title to a piece of land, placing and removing encumbrances (like liens and mortgages) on the title of a property, and the conditions under which a Certificate of Pending Litigation can be placed on the title. The ''[http://canlii.ca/t/848q Partition of Property Act]'' gives someone who owns property jointly with someone else the right to force the sale of that property over the objections of the other owner.

===Wills and estates===

The provincial ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]'' deals with wills, changing wills, how close relatives can challenge a will, and what happens when someone dies without a will.

===Names and change of name===

The provincial ''[http://canlii.ca/t/8481 Name Act]'' is the law that deals with changes of name, both for a married spouse following divorce and for anyone who hankers to be called something different. (The process is fairly simple for a spouse following divorce.) The ''[http://canlii.ca/t/84fk 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.

There's more information about naming and changing names in the aptly-named [[Naming and Changes of Name]] section of the [[Other Family Law Issues]] chapter.

==International treaties==

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 [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 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 application, 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 the Child===

The [http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx UN Convention on the Rights of the Child] 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 proceeding that affects their interests:

<blockquote><tt>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.</tt></blockquote>
<blockquote><tt>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.</tt></blockquote>

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]].

===Domestic legislation===

Canada and British Columbia have made a number of important agreements with other countries for the mutual enforcement of court orders.

The ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'' talks about getting and changing orders for child support and spousal support where the parties are living in different provinces, territories or states. The [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] has a table showing which countries have signed up.

The ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' is about enforcing court orders for the payment of money or transfer of goods or property. The countries that have signed up can be found in the [http://canlii.ca/t/84h5 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]].

{{REVIEWED | reviewer = [[JP Boyd]], August 8, 2017}}

{{JP Boyd on Family Law Navbox|type=started}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

The Legislation on Family Law

2017-08-13T18:10:38Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC}}

The most important statutes in family law and divorce law are British Columbia's ''[[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]]. You may also run into other provincial and federal laws, like the ''[http://canlii.ca/t/8481 Name Act]'', the ''[http://canlii.ca/t/848q Partition of Property Act]'' or the ''[http://canlii.ca/t/7vfd Canada Pension Plan]'', which weren't written just for family law disputes but still relate to your situation. There are also some international treaties that might apply, most commonly the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on child abduction] and the [http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx UN Convention on the Rights of the Child].

This section describes the basic legislation on family and divorce law, and briefly reviews some of the important secondary legislation and treaties touching on family law issues.

==Two important statutes, one important regulation and one influential paper==

The federal ''[[Divorce Act]]'', the provincial ''[[Family Law Act]]'' and the federal [[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.

Only the ''[[Divorce Act]]'' deals with divorce. Only the ''[[Family Law Act]]'' deals with the guardianship of children and the division of property and debts. Both acts deal with the care of children, children's parenting schedules, child support, and spousal support. Both laws use the [[Child Support Guidelines]] to calculate child support and the payment of children's special expenses.

One of the most important distinctions between the two laws, as will be seen below, lies in how they define important terms like ''spouse'', ''parent'' and ''child''. Depending on the particular law you're dealing with, you may fall inside these definitions or outside of them, and that can have an important impact on your family law problem and the options available to you.

===The ''Divorce Act''===
{{:Divorce Act}}
===The ''Family Law Act''===
{{:Family Law Act}}

===The Child Support Guidelines===
The [[Child Support Guidelines]], often referred to as just the ''Guidelines'', is a federal regulation that standardizes child support orders throughout Canada, except in Quebec. The Guidelines talk about how income is calculated and how children's 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 Guidelines'', 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]] in the section [[The Spousal Support Advisory Guidelines]].

==Other legislation related to family law issues==

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 property, wills and estates, and name changes.

===Marriage===

The federal ''[http://canlii.ca/t/7vq2 Marriage (Prohibited Degrees) Act]'' sets out the degrees of consanguinity (relatedness by blood) a couple cannot have if they are to marry each other. The federal ''[http://canlii.ca/t/7w02 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 ''[http://canlii.ca/t/7vb7 Income Tax Act]''.

The provincial ''[http://canlii.ca/t/846b 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.

More information about marrying and marriage, including invalid marriages, is available in the [[Marriage & Married Spouses]] section in the [[Family Relationships]] chapter.

===Children===

The provincial ''[http://canlii.ca/t/84gw Age of Majority Act]'' sets the age of majority at 19. The provincial ''[http://canlii.ca/t/8446 Infants Act]'' describes the legal capacity of children, such as their ability to enter into legally binding contracts or marriage settlements.

The provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' deals with such things as who can give a child up for adoption, 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 ''[http://canlii.ca/t/84kw 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.

===Child protection===

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 [http://www.rcybc.ca Representative for Children and Youth], operating under the ''[http://canlii.ca/t/84nt 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 youth 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 ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]'' gives the government, specifically the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development], the power to apprehend 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 support obligations===

The provincial ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' establishes the [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program], a government agency with the authority to enforce support orders, and sets the extent of that authority. The provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' sets out the ways in which money awarded under a judgment can be collected, such as by liens against property, the garnishment of wages, and so forth.

The provincial ''[http://canlii.ca/t/84l3 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.

===Real property===

The provincial ''[http://canlii.ca/t/8451 Land (Spouse Protection) Act]'' protects the rights of married spouses and unmarried spouses to their interest in the family home by allowing them to file an entry on the title of the property, but the protection ends once the spousal relationship ends.

The provincial ''[http://canlii.ca/t/8456 Land Title Act]'' deals with all aspects of the ownership and transfer of real property in British Columbia, including the conditions of holding valid title to a piece of land, placing and removing encumbrances (like liens and mortgages) on the title of a property, and the conditions under which a Certificate of Pending Litigation can be placed on the title. The ''[http://canlii.ca/t/848q Partition of Property Act]'' gives someone who owns property jointly with someone else the right to force the sale of that property over the objections of the other owner.

===Wills and estates===

The provincial ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]'' deals with wills, changing wills, how close relatives can challenge a will, and what happens when someone dies without a will.

===Names and change of name===

The provincial ''[http://canlii.ca/t/8481 Name Act]'' is the law that deals with changes of name, both for a married spouse following divorce and for anyone who hankers to be called something different. (The process is fairly simple for a spouse following divorce.) The ''[http://canlii.ca/t/84fk 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.

There's more information about naming and changing names in the aptly-named [[Naming and Changes of Name]] section of the [[Other Family Law Issues]] chapter.

==International treaties==

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 [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 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 application, 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 the Child===

The [http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx UN Convention on the Rights of the Child] 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 proceeding that affects their interests:

<blockquote><tt>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.</tt></blockquote>
<blockquote><tt>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.</tt></blockquote>

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]].

===Domestic legislation===

Canada and British Columbia have made a number of important agreements with other countries for the mutual enforcement of court orders.

The ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'' talks about getting and changing orders for child support and spousal support where the parties are living in different provinces, territories or states. The [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] has a table showing which countries have signed up.

The ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' is about enforcing court orders for the payment of money or transfer of goods or property. The countries that have signed up can be found in the [http://canlii.ca/t/84h5 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]].

{{REVIEWED | reviewer = [[JP Boyd]], August 8, 2017}}

{{JP Boyd on Family Law Navbox|type=started}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Introduction to Family Law in British Columbia

2017-08-13T17:53:37Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC}}
{{LSSbadge
|resourcetype = more fact sheets, publications, and videos on
|link = [http://www.familylaw.lss.bc.ca/legal_issues/legalSystemBasics.php Legal System Basics]
}}This section offers a short introduction to the principles of family law in British Columbia and the ways that family law problems are resolved. It's written in easy-to-understand language and is meant for people who have never had to deal with the legal system before and for people who are new to Canada.

This section is meant to be read as a whole, from start to finish. The main chapters of this wikibook go into each subject in a lot more detail. When you're done with this section, the chapter [[Introduction to the Legal System for Family Matters|The Legal System]] has a more complete introduction to family law and dispute resolution processes in BC.

Here you will find an overview of common family law problems, the laws that deal with family law problems, the courts that deal with family law problems, and the other ways that family law problems are resolved. This section talks briefly about the law on the care of children, child support, spousal support, the division of property and debt, separation and divorce, and family law agreements.

==Introduction==

When a couple breaks up, they may have to decide how a child will be cared for, how property should be divided, and whether someone needs extra money to help pay the bills. Family law, sometimes also called divorce law or the law on domestic relations, is the area of the law that deals with problems like these.

To understand how family law works in British Columbia, you need to have a basic understanding of the legal system, the laws about family law problems, and how the courts apply those laws when a couple can't agree about something. Since it isn't always necessary to go to court when there's a problem, you also need to know about negotiation and mediation. These are the most common ways that people solve their problems without the help of a judge.

Family law problems are resolved in one of two ways: the couple bargain with each other and come up with a solution that they both agree to; or, the couple can't agree and they have to ask someone else to come up with a solution, usually by going to court. Going to court means that one or both people have or will start a court proceeding. (Court proceedings are also known as ''lawsuits'', ''claims'' or ''actions''.) Going to court is called ''litigation''; trying to come up with an agreement without going to court is called ''negotiation''. Mediation is a kind of negotiation.

There are two courts that handle almost all family law litigation in British Columbia: the Provincial (Family) Court and the Supreme Court. Each court has its own rules, its own forms, and its own process.

There are two main laws that apply to family law problems. A law, in this sense of the word, means a rule made by the government. These laws are the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]''. Each law deals with different issues, although they share a lot of issues in common. For some couples, both laws will apply; for others, only one of these laws will apply, probably the ''[[Family Law Act]]''.

It's important to know that you don't have to go to court, no matter how bad your problem is. The only times you ''must'' go to court are when:

*you need a divorce,
*someone is threatening to do something serious, like take the children away,
*there is a risk of violence,
*someone is threatening to hide property or money, or
*you just can't agree about how to solve the problem no matter how hard you try.

If you don't have to deal with one or more of these issues, you can always try to negotiate a way of fixing the problem, to find a solution that you both agree with. Couples who need help negotiating sometimes hire someone else to help, someone who has special training helping people resolve problems and make deals, called a ''mediator''. Mediators help to guide the negotiation process and encourage people to see different ways of solving the problem.

Lawyers who mediate family law problems are called ''family law mediators'', and have additional training in mediation apart from their training as lawyers. Because there are no rules about who can and who can't call themselves a mediator, you should look carefully at a mediator's credentials before you agree to use that person as your mediator.

'''Further reading:'''

*[[Introduction to the Legal System for Family Matters]]
*[[Resolving Family Law Problems out of Court]]
*[[Children in Family Law Matters]], in particular the section on [[Parenting after Separation]]

==Common family law problems==

All sorts of people in all sorts of situations can have family law problems, including couples who live together and couples who don't, couples who are married and couples who aren't, and couples who intended to have a child together and couples who didn't. In British Columbia, family law applies to same-sex couples in exactly the same way that it applies to opposite-sex couples.The sorts of problems a couple can have when their relationship ends include deciding how the children will be cared for, whether support should be paid, and who will keep which property and which debt.

Family law problems about children include making decisions about:

*''parenting time'' or ''custody'', which includes deciding where the children will live for most of the time,
*''parental responsibilities'' or ''custody'', which includes deciding how parents or guardians will make decisions about important things in the children's lives, about issues like health care and education, and
*''parenting time'', ''contact'' or ''access'', which are about deciding how much time each parent and other people will have with the children.

Support means money that one person pays another to help with that person's expenses. Family law problems about support include:

*''child support'', money that is paid to help with expenses for the children, like shelter, clothing, medical expenses and food, and
*''spousal support'', money that is paid to help with a spouse's day-to-day living expenses, like rent, the phone bill and the hydro bill, and sometimes money that is paid to compensate a spouse for effect of economic decisions made during the relationship.

When a couple have property, sometimes including when only one person has property, they have to decide if and how that property will be shared between them. In family law, the property married spouses and unmarried spouses share is called ''family property'', generally only the property that accumulated during a relationship. Family property can include things like houses, bank accounts, and cars. It can also include RRSPs and pensions. Sometimes a couple also has to decide who will take responsibility for debts. Generally, only the debts that accumulated during a relationship will be shared between married spouses and unmarried spouses.

Married spouses also have to decide about whether they want to get divorced. Divorce is the legal termination of a marriage, and only a judge can make you divorced. Most married spouses whose relationship has ended want to get divorced, but it's usually a low priority. Couples who aren't married, including unmarried spouses, never need to get divorced.

All of these family law problems will be discussed in more detail later on.

As you can see, the sorts of family law problems a couple can have sometimes depends on what their relationship was like. In family law, there are four main types of relationship:

#'''Unmarried couples.''' An unmarried couple probably think of themselves as boyfriend and girlfriend. They may have lived together, but not for too long. Sometimes an unmarried couple involved in a family law problem will have been together only for a very short while ― perhaps just long enough to make a baby.
#'''Unmarried spouses.''' Unmarried spouses are not legally married. Unmarried spouses have lived together in a loving relationship, and, for most purposes of the ''[[Family Law Act]]'', must have lived together for at least two years or for less than two years if the couple have had a child together.
#'''Married spouses.''' Married spouses have been legally married, by a marriage commissioner or a religious official licensed to perform marriages, and their marriage has been registered with the government where they were married.
#'''Parents.''' Parents are people who have had a baby together, sometimes including people who helped as the donor of sperm, the donor of eggs or a surrogate mother. Parents may be an unmarried couple, unmarried spouses, married spouses or complete strangers. What matters is that they have a child.

'''Further reading:'''

*[[Children in Family Law Matters]]
*[[Child Support]]
*[[Spousal Support]]
*[[Property & Debt in Family Law Matters]]
*[[Family Relationships]], in particular the sections on [[Marriage & Married Spouses]] and [[Unmarried Spouses]]

==Resolving family law problems==

If you have a family problem now, or might have one in the future, you have two ways to resolve that problem: you can talk to the other person and try make a decision about the problem together; or, you can ask someone else to make the decision for you. Really, there's also a third option. You could also walk away refuse to deal with the problem, and wait to see what happens. This is a terrible way of dealing with family law problems.

If you want to try to make a decision about the problem together, you and the other adults involved in the problem will need to agree on a resolution and your decision will usually be written down in a formal agreement. Reaching an agreement usually requires negotiation. You can negotiate face to face, or do it through lawyers. ''Mediation'' is a kind of negotiation that uses a specially-trained mediator to help people talk to each other and find a resolution. ''Collaborative settlement processes'' are a kind of negotiation that uses specially-trained lawyers, and sometimes people who are experts about money or experts about children, who work together to help people talk to each other.

If you want to ask someone to make a decision about the problem, you can go to court or you can go to an arbitrator. If you ''litigate'', you will start a public court proceeding governed by the formal rules of court that will conclude months or years later with a trial before a judge, if your family problem isn't resolved before then. If you ''arbitrate'', you will start a private proceeding governed by rules you can help design that will conclude months later with a hearing before an arbitrator.

Court proceedings usually end with the judge's ''order''. Arbitration proceedings end with the arbitrator's ''award''. Negotiation usually ends with a settlement that is written down as an ''agreement'', but if you can negotiate a deal in the middle of a court proceeding, the settlement might be written down as a ''consent order''. If you negotiate a deal in the middle of an arbitration proceeding, the settlement might be written as a ''consent award''. Orders, awards and agreements are for family law problems that you have now. Agreements are also used for family law problems that you might have in the future.

'''Further reading:'''

*[[Resolving Family Law Problems out of Court]]
*[[Resolving Family Law Problems in Court]]
*[[Family Law Agreements]]

===Family law agreements===

A family law agreement is a contract, like the contract you might have with your landlord or your employer, or the contract you might sign if you lease a car. Family law agreements are used to record a couple's agreement on legal issues that they're dealing with when they make the agreement, or may have to deal with at some point in the future.

There are three kinds of agreement a couple can make about family law issues:

#living-togther or cohabitation agreements, agreements that a couple may make when they are living together or plan to live together,
#marriage agreements, which a couple may want if they are going to be getting married, and
#separation agreements, which a married or unmarried couple may make after their relationship ends.

''Cohabitation agreement''s and ''marriage agreements'' are for couples who are just starting a relationship. These sorts of agreements can talk about how the relationship will be managed (who will pay the bills, will there be a joint bank account or a joint credit card, or who will do what parts of the housework), but most often talk about what will happen if the relationship ends. These agreements are usually meant to stop a couple from fighting after a relationship ends by setting out who will get what right from the start.

''The law does not require that a couple make a cohabitation agreement or a marriage agreement when they start to live together or marry. You don't have to sign an agreement like this if you don't want to.''

Cohabitation agreements and marriage agreements aren't for everyone. People who are bringing a lot of property, money, or children into a relationship may want a cohabitation agreement or a marriage agreement. People who don't have property or children, are young, and expect to have a long-term relationship may not need an agreement.

''Separation agreements'' are made after a relationship has ended. They talk about how a couple has agreed to deal with things like the care of children, child support and spousal support, and how the family assets will be shared. Separation agreements don't have to cover all the family law problems a couple have. They can deal with just some of those problems and leave the rest for the court to decide.

Normally a couple who are thinking about a separation agreement talk about the issues and try to negotiate a resolution that they are both happy with. It is unusual for just one person to write a separation agreement without talking to the other person. ''You do not have to sign a separation agreement if you don't want to.''

No matter what kind of family law agreement you have signed, you both expect that each of you will follow the agreement, and that the court will enforce the agreement if you don't follow it. The court will generally respect an agreement that a couple willingly signed, as long as the agreement was fair and neither person misled the other person about something important, like money or property.

'''Further reading:'''

*[[Family Law Agreements|Family Law Agreements]]

===The courts of British Columbia===

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. The Court of Appeal is the highest court in the province and the Provincial Court is the lowest. The Provincial Court and the Supreme Court are ''trial courts'', which means that if litigants can't solve a legal problem for themselves, the court can make decisions resolving those problems after hearing from witnesses and considering the other evidence presented at a formal trial. The Court of Appeal is an ''appeal court'', meaning that it doesn't hold trials, it just hears arguments about whether the decision of a trial court was correct or incorrect. Most family law litigation happens in the Provincial Court and the Supreme Court.

The branch of the Provincial Court that deals with family law is called the Provincial (Family) Court. Other branches of the Provincial Court include the Provincial (Youth) Court and the Provincial (Small Claims) Court. (When this resource talks about the Provincial (Family) Court, it will just say the "Provincial Court.") The Provincial Court can deal with:

*guardianship of children under the ''[[Family Law Act]]'',
*parental responsibilities, parenting time and contact under the ''[[Family Law Act]]'',
*child support,
*spousal support, and
*orders protecting people.

The Supreme Court can deal with all family law problems. On top of issues about the guardianship and the care of children, child support and spousal support under the ''[[Family Law Act]]'', this court can also deal with:

*divorce,
*custody and access under the ''[[Divorce Act]]'',
*dividing family property and family debt, and
*orders protecting property.

The Supreme Court can also hear appeals of decisions made by the Provincial Court. The Court of Appeal only hears appeals of decisions made by the Supreme Court, including decisions made by the Supreme Court about appeals from the Provincial Court!

This chart shows which trial court can deal with which family law problem:

::{| width="65%" class="wikitable"
!style="width: 25%"|
!style="width: 20%" align="center"|Supreme Court
!style="width: 20%" align="center"|Provincial Court
|-
|align="center"|'''Divorce'''||align="center"|Yes||
|-
|align="center"|'''Care of children'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Time with children'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Child support'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Children's property'''||align="center"|Yes||
|-
|align="center"|'''Spousal support'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Family property and family debt'''||align="center"|Yes||
|-
|align="center"|'''Protection orders'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Financial restraining orders'''||align="center"|Yes||
|}

To get to court, you must start a court proceeding and tell the court what you want. In the Provincial Court, proceedings are started with a court form called an Application to Obtain an Order. In the Supreme Court, the court form is called a Notice of Family Claim. In the Provincial Court, the person who starts a court proceeding is called the ''applicant''; in the Supreme Court, this person is the ''claimant''.

Once a court proceeding has started, the person whom the proceeding has been brought against can answer the claims being made and make new claims. In the Provincial Court, this answer is called a Reply. In the Supreme Court, two court forms can be used: a Response to Family Claim and a Counterclaim. In the Provincial Court and in the Supreme Court, the person answering a court proceeding is called the ''respondent''.

Applicants and respondents (in the Provincial Court), and claimants and respondents (in the Supreme Court), are called the ''parties'' to the court proceeding.

After the respondent has filed a reply to the claim, both parties can ask the court to make an ''order'' about some or all of the issues raised in the court proceeding. An order is a decision of a judge that requires someone to do something or not do something. For example, a court can make an order that a child live mostly with one party, an order that one party not harass the other, or an order that one party have the family car.

Orders can be made ''by consent'', which means that they are made with the agreement of both people. If the couple can't agree on the terms of the order, they must go to a hearing before a judge and have the judge decide the terms of the order. There are two types of order: an ''interim order'', which is any order made before trial; and, a ''final order'', which is an order made at the end of a trial. A ''trial'' is the final hearing before a judge that concludes the court proceeding.

If you don't like the order you get from the judge, you cans sometimes challenge the order before a higher level of court in a court proceeding called an ''appeal''. An order of the Provincial Court is appealed to the Supreme Court. An order of the Supreme Court is appealed to the Court of Appeal. You cannot appeal an order that you agreed to.

Over time, the terms of an order may need to be changed. If there has been a serious change in your circumstances or in the circumstances of the children since an order was made, you can go back to court and ask that the order be changed to suit the new circumstances. This is called ''varying'' an order.

'''Further reading:'''

*[[Introduction to the Legal System for Family Matters]], in particular the section on [[The Court System for Family Matters]]
* [[Resolving Problems in Court]], in particular the sections on [[Starting a Court Proceeding in a Family Matter]], [[Replying to a Court Proceeding in a Family Matter]], and [[Interim Applications in Family Matters]]

==The basic law==

There are two kinds of law: laws made by the governments, called ''legislation'', ''statutes'', ''acts'' and ''regulations''; and, laws made by the courts. Laws made by the courts are known as the ''common law'', ''precedent decisions'' or ''case law''. They come from the different proceedings that the courts have heard over hundreds of years, and the decisions the courts have made in those different proceedings.

Legislation is made by the federal government and the provincial government. The two pieces of legislation that are the most important for family law in British Columbia are the federal ''Divorce Act'' and the provincial ''Family Law Act''. Each piece of legislation deals with different family law problems and applies to different kinds of relationships.

The ''Divorce Act'' only applies to people who are married or who used to be married to each other. It deals with:

*divorce,
*custody,
*access,
*child support, and
*spousal support.

The ''Family Law Act'' applies to married spouses, unmarried spouses, parents and unmarried couples who are neither married spouses nor unmarried spouses, don't have children, and are perhaps just dating. This law deals with:

*guardianship of children,
*parental responsibilities and parenting time,
*contact,
*child support,
*spousal support,
*dividing family property and family debt,
*orders protecting people, and
*orders protecting property.

Unmarried couples and parents who aren't spouses can only use the ''[[Family Law Act]]'' to ask for orders about the care of children, child support, and orders protecting people. Married spouses and unmarried spouses can use the act to ask for orders about the care of children, child support, and orders protecting people, as well as orders about spousal support, property and debt, and orders protecting property.

The Supreme Court can make orders under both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. The Provincial Court can only make orders under the parts of the ''[[Family Law Act]]'' that don't deal with property.

This chart shows which law deals with which issue:

::{| width="65%" class="wikitable"
!style="width: 25%"|
!style="width: 20%" align="center"|Provincial ''Family Law Act''
!style="width: 20%" align="center"|Federal ''Divorce Act''
|-
|align="center"|'''Divorce'''|| ||align="center"|Yes
|-
|align="center"|'''Care of children'''||align="center"|Guardianship and parental responsibilities||align="center"|Custody
|-
|align="center"|'''Time with children'''||align="center"|Parenting time or contact||align="center"|Access
|-
|align="center"|'''Child support'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Children's property'''||align="center"|Yes||
|-
|align="center"|'''Spousal support||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Family property and family debt'''||align="center"|Yes||
|-
|align="center"|'''Protection orders'''||align="center"|Yes||
|-
|align="center"|'''Financial restraining orders'''||align="center"|Yes||
|}

There is a bunch of other legislation that deals with family law problems, such as the ''[http://canlii.ca/t/84g5 Adoption Act]'' (which deals with adoption), the ''[http://canlii.ca/t/8481 Name Act]'' (which deals with changing your name and your children's names), the ''[http://canlii.ca/t/8456 Land Title Act]'' (which has to do with land and houses), and the ''[http://canlii.ca/t/84fk Vital Statistics Act]'' (which has to do with registering births, deaths, marriages, and divorces). The most important of these other laws is the [[Child Support Guidelines]].

The [[Child Support Guidelines]] sets out the rules about how much child support should be paid according to the income of the person paying child support and the number of children child support is being paid for. For most people, the amount that should be paid is set out in a table at the end of the Guidelines. The Guidelines also sets out the rules about when child support can be paid in an amount different than what the tables say should be paid.

'''Further reading:'''

*[[Introduction to the Legal System for Family Matters]], in particular the section on [[The Law for Family Matters]]
*[[Legislation in Family Matters]] in Getting Started
*[[Child Support]], in particular the section on [[Child Support Guidelines]]

===The care of children===

There are three things that parents must decide when their relationship ends: where the children will mostly live; how the parents will make decisions about the important events in the children's lives; and, how much time each parent will have with the children.

The ''[[Divorce Act]]'' talks about these issues in terms of ''custody'' and ''access''. Custody sort of means where the children live most of the time, but separated parents can both have custody, called ''joint custody'', and not have anywhere close to half of the children's time. In cases like this, joint custody means an equal right to participate in making decisions about the children. Access is the word used to describe the schedule of the child's time between his or her parents.

The ''[[Family Law Act]]'' talks about these issues in terms of ''parental responsibilities'', ''parenting time'' and ''contact''. People who are guardians, usually parents, have parental responsibilities and parenting time. Someone who isn't a guardian, which might include a parent, has contact with a child.

Parental responsibilities are all about parenting. They include making decisions about where the children go to school, how they are treated when they get sick, whether they will play sports or take music lessons, and about the religion they will be taught. Parental responsibilities can be shared between guardians or divided between them, so that only one guardian can make decisions about a particular parenting issue. When more than one guardian share a parental responsibility, the guardians must try to work together to make decisions about that issue.

Parenting time and contact are the terms used to describe the schedule of the child's time between guardians and and between guardians and people who are not guardians.

'''Further reading:'''

*[[Children in Family Law Matters]], in particular the sections on [[Custody and Access]] and [[Guardianship, Parenting Arrangements and Contact]]

===Child support===

Child support is normally paid by the parent who has the children for the least amount of time to the parent who has the children for the most amount of time. Child support is paid to help with the children's day-to-day living expenses, and covers a lot of things, from new clothes to school supplies to the children's share of the rent.

Child support is not a fee a parent must pay to see the children. Child support has nothing to do with custody or guardianship; it has nothing to do with access, parenting time or contact; it has nothing to do with whether a parent is a good parent or a bad parent. A parent has a duty to pay child support just because he or she is a parent.

Child support is almost always paid every month in the amount set out in the [http://canlii.ca/t/80mh Child Support Guidelines]. A parent's duty to pay child support does not end until the child turns 19. It can last longer than that if a child has an illness or disability that prevents the child from earning a living, or if the child is going to university or college.

Normally a parent pays the exact amount of child support the Guidelines tables say should be paid. A parent can pay a smaller amount in a limited number of circumstances, including if: the children's time is shared almost equally between the parents; one or more children live with each parent; or, paying the amount required by the Guidelines would cause serious financial hardship.

The basic amount of child support is intended to cover most of the children's expenses. Some expenses, called ''special or extraordinary expenses'', are not covered in this basic amount. Typically, extraordinary expenses are expenses like daycare and orthodontics — big, important expenses that most but not all children need. Where the children have extraordinary expenses, the parents contribute to those expenses in proportion to their incomes. For example, if one parent earns $30,000 per year and the other earns $20,000, the first parent would have to pay 60% of an extraordinary expense and the other would have to pay 40%.

'''Further reading:'''

*[[Child Support]], in particular the section on the [[Child Support Guidelines]]

===Spousal support===

Spousal support is money paid by one spouse to the other spouse, for one of three reasons. Spousal support may be paid to help the other spouse meet his or her living expenses, or it may be paid to compensate a spouse for the economic consequences of decisions made during the relationship. Spousal support may also be paid because a spouse agreed to pay it, perhaps in a marriage agreement or a living-together agreement, but more commonly in a separation agreement. Spousal support is not automatically payable just because a couple were married or unmarried spouses; the person who wants support must prove that he or she is entitled to get it.

The decisions made by a couple during their relationship can cause a spouse to be entitled to compensation if those decisions took the spouse out of the paid workforce, required the spouse to move to a place where there was less financial opportunity, prevented the spouse from taking a promotion or have made it more difficult for the spouse to get a job after separation. Say, for example, a couple decided that one of them should quit work and stay at home to raise the children and be a homemaker. A spouse who stays at home may have to leave a job or a career, and it can be very difficult to return to work after being out of the workforce, particularly when the relationship was long and there is no career to return to.

The end of a relationship can cause a spouse to need financial help. After a couple separate, the same amount of money they had during the relationship now has to pay for two rent bills, two hydro bills and two grocery bills. When the couple were together, however, their combined incomes only had to pay for one rent bill, one hydro bill and one phone bill.

Spousal support is usually paid every month for a certain amount of time, although it can be paid indefinitely or be paid in a large, single payment. The amount of spousal support that is paid is usually an amount that the person with more money can afford to pay, using the money left over after that person's basic living expenses have been paid.

When a relationship was very long or the couple are older, spousal support can be paid forever or until they both get pensions or government benefits like CPP. When the couple is younger, spousal support is usually only paid for a specific amount of time. This is because the person getting support has an obligation to try to become financially independent from the person paying support.

The amount of spousal support that should be paid and the length of time support should be paid can also be calculated using the [[Spousal Support Advisory Guidelines]]. The Advisory Guidelines uses two formulas, one for when a couple has children and one for when they don't, that calculate how much support should be paid according to the length of the relationship and each party's annual income.

There are three very important things to know about the Advisory Guidelines:

#The Advisory Guidelines is not a law and there is no rule saying that the Advisory Guidelines formulas must be used. Despite this, lawyers and the court use the Advisory Guidelines almost all the time when spousal support is going to be paid.
#The Advisory Guidelines is only used when someone is proven to be entitled to receive support; if there is no entitlement, the Advisory Guidelines doesn't apply.
#The formulas the Advisory Guidelines describes are very complicated. In particular, the formulas that are used when a couple has children cannot be done without a computer program.

Only people who are married spouses or unmarried spouses can ask for spousal support. Married spouse must ask for spousal support within two years of their divorce. Unmarried spouses must ask for spousal support within two years of their separation.

'''Further reading:'''

*[[Spousal Support]], in particular the section on [[The Spousal Support Advisory Guidelines]]

===Dividing family property and family debt===

Married spouses and unmarried spouses who have lived together for at least two years are each entitled to half of the ''family property'' when their relationships end. Family property includes:

*the property the spouses got during their relationship, including real estate as well as personal property,
*bank accounts, investments, RRSPs and pensions,
*the interest of a spouse in a company, business or partnership,
*debts owed to a spouse, and
*the increase in value of "excluded property" during the relationship.

Each spouse is entitled to keep all of his or her ''excluded property''. Excluded property includes:

*the property owned by each spouse on the date they began to live together or the date they married, whichever is earlier,
*gifts or inheritances received during the relationship,
*certain kinds of court awards and insurance payments made during the relationship, and
*property bought during the relationship with excluded property.

Each spouse is also responsible for half of the ''family debt''. Family debt includes:

*all debts incurred by either spouse during the relationship, and
*debt incurred after separation, if the debt was incurred to maintain family property.

The spouses' right to a share in the family property and obligation to share in the family debt happens when the spouses separate. Separation doesn't always happen when someone moves out. Spouses can be separated while living together, as long as one of them has said the relationship is over and then the couple has behaved as if it was over, for example by stopping sleeping together or eating together, and stopping doing chores for each other.

'''Further reading:'''

*[[Property & Debt in Family Law Matters]]

===Separation and divorce===

You don't need a legal document to separate, and you don't need to see a lawyer or a judge to separate. You just leave the relationship or announce that it's over and then behave like it's over. There is no such thing as a ''legal separation'' in British Columbia.

For unmarried spouses and other unmarried couples, their relationship is over the moment they separate. That's it, it's done! There is no such thing as a "common-law marriage," and unmarried spouses don't need to get divorced.

For a marriage to end, however, married spouses must divorce, and that means they must get a court order saying that they are divorced. A married couple can be separated for many years but still be married if they haven't gotten a divorce order.

Sometimes married people don't get around to getting a divorce for many, many years. That's fine. The only thing a separated married person can't do that an unmarried person can do is marry again. Separated married people can date someone else, live with someone else, be in a unmarried relationship with someone else, have property in their own name, have bank accounts and credit cards in their own name, and so on.

There is only one reason why a court will make a divorce order: it believes that the marriage has broken down. The breakdown of a marriage can be shown in one of three ways:

#the couple have separated and have stayed separated for more than one year,
#a spouse has had sex with someone other than his or her spouse, called ''adultery'', or
#a spouse has been verbally, emotionally or physically abusive to the other spouse, which is what the ''[[Divorce Act]]'' means by ''cruelty''.

To get a divorce order, you have to start a court proceeding. You don't have to ask the court for anything else except a divorce, if a divorce is all you need. When a couple agrees to get a divorce, they can get a divorce using the do-it-yourself desk order process, and they won't have to go in front of a judge ever.

'''Further reading:'''

*[[Separation & Divorce]]

==Information for people who are new to Canada==

In Canada, men and women have exactly the same rights. There is no difference between the rights a man has and the rights that a woman has, whether they are married to each other or not. Men do not have the right to control women or tell them what they may and may not do, even if a couple are married to one another.

Our courts are open to everybody who lives in Canada, not only to people who have Canadian citizenship. People who are new to Canada can make a claim in court, regardless of their citizenship status, and regardless of whether they have permanent residency in Canada or not.

There is no law that requires someone who is unhappy in a marriage to stay in that marriage. If someone wants to leave a relationship, he or she can, and that person does not need the permission or agreement of the other spouse to leave.

In Canada, there is no requirement for either dowry or dower to be paid when a couple marries or divorces. Even if a religion requires such a payment, the religious duty is not legally binding in Canada.

If an arranged marriage has been proposed, the parties must still agree to the marriage of their own free will. There is no law that allows someone to be forced to marry someone else. An agreement between relatives about a marriage is not legally binding on the people who are supposed to get married.

When one spouse sponsors another spouse to come to Canada, that person will usually sign a "sponsorship agreement" with the government. This agreement requires the sponsor to support the person who is coming to Canada, whether they stay married, separate or divorce. This agreement is only between the sponsor and the government. If the person coming to Canada needs spousal support, for example, he or she can ask the court for an order that spousal support be paid.

Separation does not automatically mean that someone new to Canada will have to leave the country. People who are permanent residents, for example, will usually be allowed to stay, regardless of what is happening in their relationship with their sponsors. You should, however, speak to an immigration lawyer just to be sure.

In Canada you must have a court order to divorce and legally end a marriage. Religious divorces are not recognized in Canada as divorces that legally end a marriage. The decisions of religious tribunals about how a separated couple will share their property or manage the care and control of their children may not be recognized in British Columbia.

'''Further reading:'''

*[[Other Family Law Issues]], particular the section on [[Other_Family_Law_Issues#Immigration_issues|immigration issues]]

{{REVIEWED | reviewer = [[JP Boyd]], August 8, 2017}}

{{JP Boyd on Family Law Navbox|type=started}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Introduction to Family Law in British Columbia

2017-08-13T17:53:07Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC}}
{{LSSbadge
|resourcetype = more fact sheets, publications, and videos on
|link = [http://www.familylaw.lss.bc.ca/legal_issues/legalSystemBasics.php Legal System Basics]
}}This section offers a short introduction to the principles of family law in British Columbia and the ways that family law problems are resolved. It's written in easy-to-understand language and is meant for people who have never had to deal with the legal system before and for people who are new to Canada.

This section is meant to be read as a whole, from start to finish. The main chapters of this wikibook go into each subject in a lot more detail. When you're done with this section, the chapter [[Introduction to the Legal System for Family Matters|The Legal System]] has a more complete introduction to family law and dispute resolution processes in BC.

Here you will find an overview of common family law problems, the laws that deal with family law problems, the courts that deal with family law problems, and the other ways that family law problems are resolved. This section talks briefly about the law on the care of children, child support, spousal support, the division of property and debt, separation and divorce, and family law agreements.

==Introduction==

When a couple breaks up, they may have to decide how a child will be cared for, how property should be divided, and whether someone needs extra money to help pay the bills. Family law, sometimes also called divorce law or the law on domestic relations, is the area of the law that deals with problems like these.

To understand how family law works in British Columbia, you need to have a basic understanding of the legal system, the laws about family law problems, and how the courts apply those laws when a couple can't agree about something. Since it isn't always necessary to go to court when there's a problem, you also need to know about negotiation and mediation. These are the most common ways that people solve their problems without the help of a judge.

Family law problems are resolved in one of two ways:
#the couple bargain with each other and come up with a solution that they both agree to; or,
#the couple can't agree and they have to ask someone else to come up with a solution, usually by going to court.

Going to court means that one or both people have or will start a court proceeding. (Court proceedings are also known as ''lawsuits'', ''claims'' or ''actions''.) Going to court is called ''litigation''; trying to come up with an agreement without going to court is called ''negotiation''. Mediation is a kind of negotiation.

There are two courts that handle almost all family law litigation in British Columbia: the Provincial (Family) Court and the Supreme Court. Each court has its own rules, its own forms, and its own process.

There are two main laws that apply to family law problems. A law, in this sense of the word, means a rule made by the government. These laws are the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]''. Each law deals with different issues, although they share a lot of issues in common. For some couples, both laws will apply; for others, only one of these laws will apply, probably the ''[[Family Law Act]]''.

It's important to know that you don't have to go to court, no matter how bad your problem is. The only times you ''must'' go to court are when:

*you need a divorce,
*someone is threatening to do something serious, like take the children away,
*there is a risk of violence,
*someone is threatening to hide property or money, or
*you just can't agree about how to solve the problem no matter how hard you try.

If you don't have to deal with one or more of these issues, you can always try to negotiate a way of fixing the problem, to find a solution that you both agree with. Couples who need help negotiating sometimes hire someone else to help, someone who has special training helping people resolve problems and make deals, called a ''mediator''. Mediators help to guide the negotiation process and encourage people to see different ways of solving the problem.

Lawyers who mediate family law problems are called ''family law mediators'', and have additional training in mediation apart from their training as lawyers. Because there are no rules about who can and who can't call themselves a mediator, you should look carefully at a mediator's credentials before you agree to use that person as your mediator.

'''Further reading:'''
Chapters on:
* [[Introduction to the Legal System for Family Matters]]
* [[Resolving Family Law Problems out of Court]]
* [[Children in Family Law Matters]], in particular the section on [[Parenting after Separation]]

==Common family law problems==

All sorts of people in all sorts of situations can have family law problems, including couples who live together and couples who don't, couples who are married and couples who aren't, and couples who intended to have a child together and couples who didn't. In British Columbia, family law applies to same-sex couples in exactly the same way that it applies to opposite-sex couples. The sorts of problems a couple can have when their relationship ends include deciding how the children will be cared for, whether support should be paid, and who will keep which property and which debt.

Family law problems about children include making decisions about:

*''parenting time'' or ''custody'', which includes deciding where the children will live for most of the time,
*''parental responsibilities'' or ''custody'', which includes deciding how parents or guardians will make decisions about important things in the children's lives, about issues like health care and education, and
*''parenting time'', ''contact'' or ''access'', which are about deciding how much time each parent and other people will have with the children.

Support means money that one person pays another to help with that person's expenses. Family law problems about support include:

*''child support'', money that is paid to help with expenses for the children, like shelter, clothing, medical expenses and food, and
*''spousal support'', money that is paid to help with a spouse's day-to-day living expenses, like rent, the phone bill and the hydro bill, and sometimes money that is paid to compensate a spouse for effect of economic decisions made during the relationship.

When a couple have property, sometimes including when only one person has property, they have to decide if and how that property will be shared between them. In family law, the property married spouses and unmarried spouses share is called ''family property'', generally only the property that accumulated during a relationship. Family property can include things like houses, bank accounts, and cars. It can also include RRSPs and pensions. Sometimes a couple also has to decide who will take responsibility for debts. Generally, only the debts that accumulated during a relationship will be shared between married spouses and unmarried spouses.

Married spouses also have to decide about whether they want to get divorced. Divorce is the legal termination of a marriage, and only a judge can make you divorced. Most married spouses whose relationship has ended want to get divorced, but it's usually a low priority. Couples who aren't married, including unmarried spouses, never need to get divorced.

All of these family law problems will be discussed in more detail later on.

As you can see, the sorts of family law problems a couple can have sometimes depends on what their relationship was like. In family law, there are four main types of relationship:

#'''Unmarried couples.''' An unmarried couple probably think of themselves as boyfriend and girlfriend. They may have lived together, but not for too long. Sometimes an unmarried couple involved in a family law problem will have been together only for a very short while ― perhaps just long enough to make a baby.
#'''Unmarried spouses.''' Unmarried spouses are not legally married. Unmarried spouses have lived together in a loving relationship, and, for most purposes of the ''[[Family Law Act]]'', must have lived together for at least two years or for less than two years if the couple have had a child together.
#'''Married spouses.''' Married spouses have been legally married, by a marriage commissioner or a religious official licensed to perform marriages, and their marriage has been registered with the government where they were married.
#'''Parents.''' Parents are people who have had a baby together, sometimes including people who helped as the donor of sperm, the donor of eggs or a surrogate mother. Parents may be an unmarried couple, unmarried spouses, married spouses or complete strangers. What matters is that they have a child.

'''Further reading:'''
Chapters on:
*[[Children in Family Law Matters]]
*[[Child Support]]
*[[Spousal Support]]
*[[Property & Debt in Family Law Matters]]
*[[Family Relationships]], in particular the sections on [[Marriage & Married Spouses]] and [[Unmarried Spouses]]

==Resolving family law problems==

If you have a family problem now, or might have one in the future, you have two ways to resolve that problem: you can talk to the other person and try make a decision about the problem together; or, you can ask someone else to make the decision for you. Really, there's also a third option. You could also walk away refuse to deal with the problem, and wait to see what happens. This is a terrible way of dealing with family law problems.

If you want to try to make a decision about the problem together, you and the other adults involved in the problem will need to agree on a resolution and your decision will usually be written down in a formal agreement. Reaching an agreement usually requires negotiation. You can negotiate face to face, or do it through lawyers. ''Mediation'' is a kind of negotiation that uses a specially-trained mediator to help people talk to each other and find a resolution. ''Collaborative settlement processes'' are a kind of negotiation that uses specially-trained lawyers, and sometimes people who are experts about money or experts about children, who work together to help people talk to each other.

If you want to ask someone to make a decision about the problem, you can go to court or you can go to an arbitrator. If you ''litigate'', you will start a public court proceeding governed by the formal rules of court that will conclude months or years later with a trial before a judge, if your family problem isn't resolved before then. If you ''arbitrate'', you will start a private proceeding governed by rules you can help design that will conclude months later with a hearing before an arbitrator.

Court proceedings usually end with the judge's ''order''. Arbitration proceedings end with the arbitrator's ''award''. Negotiation usually ends with a settlement that is written down as an ''agreement'', but if you can negotiate a deal in the middle of a court proceeding, the settlement might be written down as a ''consent order''. If you negotiate a deal in the middle of an arbitration proceeding, the settlement might be written as a ''consent award''. Orders, awards and agreements are for family law problems that you have now. Agreements are also used for family law problems that you might have in the future.

'''Further reading:'''
Chapters on:
*[[Resolving Family Law Problems out of Court]]
*[[Resolving Family Law Problems in Court]]
*[[Family Law Agreements]]

===Family law agreements===

A family law agreement is a contract, like the contract you might have with your landlord or your employer, or the contract you might sign if you lease a car. Family law agreements are used to record a couple's agreement on legal issues that they're dealing with when they make the agreement, or may have to deal with at some point in the future.

There are three kinds of agreement a couple can make about family law issues:

#living-togther or cohabitation agreements, agreements that a couple may make when they are living together or plan to live together,
#marriage agreements, which a couple may want if they are going to be getting married, and
#separation agreements, which a married or unmarried couple may make after their relationship ends.

''Cohabitation agreement''s and ''marriage agreements'' are for couples who are just starting a relationship. These sorts of agreements can talk about how the relationship will be managed (who will pay the bills, will there be a joint bank account or a joint credit card, or who will do what parts of the housework), but most often talk about what will happen if the relationship ends. These agreements are usually meant to stop a couple from fighting after a relationship ends by setting out who will get what right from the start.

''The law does not require that a couple make a cohabitation agreement or a marriage agreement when they start to live together or marry. You don't have to sign an agreement like this if you don't want to.''

Cohabitation agreements and marriage agreements aren't for everyone. People who are bringing a lot of property, money, or children into a relationship may want a cohabitation agreement or a marriage agreement. People who don't have property or children, are young, and expect to have a long-term relationship may not need an agreement.

''Separation agreements'' are made after a relationship has ended. They talk about how a couple has agreed to deal with things like the care of children, child support and spousal support, and how the family assets will be shared. Separation agreements don't have to cover all the family law problems a couple have. They can deal with just some of those problems and leave the rest for the court to decide.

Normally a couple who are thinking about a separation agreement talk about the issues and try to negotiate a resolution that they are both happy with. It is unusual for just one person to write a separation agreement without talking to the other person. ''You do not have to sign a separation agreement if you don't want to.''

No matter what kind of family law agreement you have signed, you both expect that each of you will follow the agreement, and that the court will enforce the agreement if you don't follow it. The court will generally respect an agreement that a couple willingly signed, as long as the agreement was fair and neither person misled the other person about something important, like money or property.

'''Further reading:'''
The chapter on:
*[[Family Law Agreements|Family Law Agreements]]

===The courts of British Columbia===

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. The Court of Appeal is the highest court in the province and the Provincial Court is the lowest. The Provincial Court and the Supreme Court are ''trial courts'', which means that if litigants can't solve a legal problem for themselves, the court can make decisions resolving those problems after hearing from witnesses and considering the other evidence presented at a formal trial. The Court of Appeal is an ''appeal court'', meaning that it doesn't hold trials, it just hears arguments about whether the decision of a trial court was correct or incorrect. Most family law litigation happens in the Provincial Court and the Supreme Court.

The branch of the Provincial Court that deals with family law is called the Provincial (Family) Court. Other branches of the Provincial Court include the Provincial (Youth) Court and the Provincial (Small Claims) Court. (When this resource talks about the Provincial (Family) Court, it will just say the Provincial Court.) The Provincial Court can deal with:

*guardianship of children under the ''[[Family Law Act]]'',
*parental responsibilities, parenting time and contact under the ''[[Family Law Act]]'',
*child support,
*spousal support, and
*orders protecting people.

The Supreme Court can deal with all family law problems. On top of issues about the guardianship and the care of children, child support and spousal support under the ''[[Family Law Act]]'', this court can also deal with:

*divorce,
*custody and access under the ''[[Divorce Act]]'',
*dividing family property and family debt, and
*orders protecting property.

The Supreme Court can also hear appeals of decisions made by the Provincial Court. The Court of Appeal only hears appeals of decisions made by the Supreme Court, including decisions made by the Supreme Court about appeals from the Provincial Court!

This chart shows which trial court can deal with which family law problem:

::{| width="65%" class="wikitable"
!style="width: 25%"|
!style="width: 20%" align="center"|Supreme Court
!style="width: 20%" align="center"|Provincial Court
|-
|align="center"|'''Divorce'''||align="center"|Yes||
|-
|align="center"|'''Care of children'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Time with children'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Child support'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Children's property'''||align="center"|Yes||
|-
|align="center"|'''Spousal support'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Family property and family debt'''||align="center"|Yes||
|-
|align="center"|'''Protection orders'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Financial restraining orders'''||align="center"|Yes||
|}

To get to court, you must start a court proceeding and tell the court what you want. In the Provincial Court, proceedings are started with a court form called an Application to Obtain an Order. In the Supreme Court, the court form is called a Notice of Family Claim. In the Provincial Court, the person who starts a court proceeding is called the ''applicant''; in the Supreme Court, this person is the ''claimant''.

Once a court proceeding has started, the person whom the proceeding has been brought against can answer the claims being made and make new claims. In the Provincial Court, this answer is called a Reply. In the Supreme Court, two court forms can be used: a Response to Family Claim and a Counterclaim. In the Provincial Court and in the Supreme Court, the person answering a court proceeding is called the ''respondent''.

Applicants and respondents (in the Provincial Court), and claimants and respondents (in the Supreme Court), are called the ''parties'' to the court proceeding.

After the respondent has filed a reply to the claim, both parties can ask the court to make an ''order'' about some or all of the issues raised in the court proceeding. An order is a decision of a judge that requires someone to do something or not do something. For example, a court can make an order that a child live mostly with one party, an order that one party not harass the other, or an order that one party have the family car.

Orders can be made ''by consent'', which means that they are made with the agreement of both people. If the couple can't agree on the terms of the order, they must go to a hearing before a judge and have the judge decide the terms of the order. There are two types of order: an ''interim order'', which is any order made before trial; and, a ''final order'', which is an order made at the end of a trial. A ''trial'' is the final hearing before a judge that concludes the court proceeding.

If you don't like the order you get from the judge, you cans sometimes challenge the order before a higher level of court in a court proceeding called an ''appeal''. An order of the Provincial Court is appealed to the Supreme Court. An order of the Supreme Court is appealed to the Court of Appeal. You cannot appeal an order that you agreed to.

Over time, the terms of an order may need to be changed. If there has been a serious change in your circumstances or in the circumstances of the children since an order was made, you can go back to court and ask that the order be changed to suit the new circumstances. This is called ''varying'' an order.

'''Further reading:'''

*[[Introduction to the Legal System for Family Matters]], in particular the section on [[The Court System for Family Matters]]
* [[Resolving Problems in Court]], in particular the sections on [[Starting a Court Proceeding in a Family Matter]], [[Replying to a Court Proceeding in a Family Matter]], and [[Interim Applications in Family Matters]]

==The basic law==

There are two kinds of law: laws made by the governments, called ''legislation'', ''statutes'', ''acts'' and ''regulations''; and, laws made by the courts. Laws made by the courts are known as the ''common law'', ''precedent decisions'' or ''case law''. They come from the different proceedings that the courts have heard over hundreds of years, and the decisions the courts have made in those different proceedings.

Legislation is made by the federal government and the provincial government. The two pieces of legislation that are the most important for family law in British Columbia are the federal ''Divorce Act'' and the provincial ''Family Law Act''. Each piece of legislation deals with different family law problems and applies to different kinds of relationships.

The ''Divorce Act'' only applies to people who are married or who used to be married to each other (including same sex couples). It deals with:

*divorce,
*custody,
*access,
*child support, and
*spousal support.

The ''Family Law Act'' applies to married spouses, unmarried spouses, parents and unmarried couples who are neither married spouses nor unmarried spouses, don't have children, and are perhaps just dating. This includes same sex couples. This law deals with:

*guardianship of children,
*parental responsibilities and parenting time,
*contact,
*child support,
*spousal support,
*dividing family property and family debt,
*orders protecting people, and
*orders protecting property.

Unmarried couples and parents who aren't spouses can only use the ''[[Family Law Act]]'' to ask for orders about the care of children, child support, and orders protecting people. Married spouses and unmarried spouses can use the act to ask for orders about the care of children, child support, and orders protecting people, as well as orders about spousal support, property and debt, and orders protecting property.

The Supreme Court can make orders under both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. The Provincial Court can only make orders under the parts of the ''[[Family Law Act]]'' that don't deal with property.

This chart shows which law deals with which issue:

::{| width="65%" class="wikitable"
!style="width: 25%"|
!style="width: 20%" align="center"|Provincial ''Family Law Act''
!style="width: 20%" align="center"|Federal ''Divorce Act''
|-
|align="center"|'''Divorce'''|| ||align="center"|Yes
|-
|align="center"|'''Care of children'''||align="center"|Guardianship and parental responsibilities||align="center"|Custody
|-
|align="center"|'''Time with children'''||align="center"|Parenting time or contact||align="center"|Access
|-
|align="center"|'''Child support'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Children's property'''||align="center"|Yes||
|-
|align="center"|'''Spousal support||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Family property and family debt'''||align="center"|Yes||
|-
|align="center"|'''Protection orders'''||align="center"|Yes||
|-
|align="center"|'''Financial restraining orders'''||align="center"|Yes||
|}

There is a bunch of other legislation that deals with family law problems, such as the ''[http://canlii.ca/t/84g5 Adoption Act]'' (which deals with adoption), the ''[http://canlii.ca/t/8481 Name Act]'' (which deals with changing your name and your children's names), the ''[http://canlii.ca/t/8456 Land Title Act]'' (which has to do with land and houses), and the ''[http://canlii.ca/t/84fk Vital Statistics Act]'' (which has to do with registering births, deaths, marriages, and divorces). The most important of these other laws is the [[Child Support Guidelines]].

The [[Child Support Guidelines]] sets out the rules about how much child support should be paid according to the income of the person paying child support and the number of children child support is being paid for. For most people, the amount that should be paid is set out in a table at the end of the Guidelines. The Guidelines also sets out the rules about when child support can be paid in an amount different than what the tables say should be paid.

'''Further reading:'''
Chapters on:
*[[Introduction to the Legal System for Family Matters]], in particular the section on [[The Law for Family Matters]]
*[[Legislation in Family Matters]] in Getting Started
*[[Child Support]], in particular the section on [[Child Support Guidelines]]

===The care of children===

There are three things that parents must decide when their relationship ends:
#where the children will mostly live;
#how the parents will make decisions about the important events in the children's lives; and,
#how much time each parent will have with the children.

The ''[[Divorce Act]]'' talks about these issues in terms of ''custody'' and ''access''. Custody sort of means where the children live most of the time, but separated parents can both have custody, called ''joint custody'', and not have anywhere close to half of the children's time. In cases like this, joint custody means an equal right to participate in making decisions about the children. Access is the word used to describe the schedule of the child's time between their parents.

The ''[[Family Law Act]]'' talks about these issues in terms of ''parental responsibilities'', ''parenting time'' and ''contact''. People who are guardians, usually parents, have parental responsibilities and parenting time. Someone who isn't a guardian, which might include a parent, has contact with a child.

Parental responsibilities are all about parenting. They include making decisions about where the children go to school, how they are treated when they get sick, whether they will play sports or take music lessons, and about the religion they will be taught. Parental responsibilities can be shared between guardians or divided between them, so that only one guardian can make decisions about a particular parenting issue. When more than one guardian share a parental responsibility, the guardians must try to work together to make decisions about that issue.

Parenting time and contact are the terms used to describe the schedule of the child's time between guardians and and between guardians and people who are not guardians.

'''Further reading:'''
Chapter on:
*[[Children in Family Law Matters]], in particular the sections on [[Custody and Access]] and [[Guardianship, Parenting Arrangements and Contact]]

===Child support===

Child support is normally paid by the parent who has the children for the least amount of time to the parent who has the children for the most amount of time. Child support is paid to help with the children's day-to-day living expenses, and covers a lot of things, from new clothes to school supplies to the children's share of the rent.

Child support is not a fee a parent must pay to see the children. Child support has nothing to do with custody or guardianship; it has nothing to do with access, parenting time or contact; it has nothing to do with whether a parent is a good parent or a bad parent. A parent has a duty to pay child support just because they are a parent.

Child support is almost always paid every month in the amount set out in the [http://canlii.ca/t/80mh Child Support Guidelines]. A parent's duty to pay child support does not end until the child turns 19. It can last longer than that if a child has an illness or disability that prevents the child from earning a living, or if the child is going to university or college.

Normally a parent pays the exact amount of child support the Guidelines tables say should be paid. A parent can pay a smaller amount in a limited number of circumstances, including if: the children's time is shared almost equally between the parents; one or more children live with each parent; or, paying the amount required by the Guidelines would cause serious financial hardship.

The basic amount of child support is intended to cover most of the children's expenses. Some expenses, called ''special or extraordinary expenses'', are not covered in this basic amount. Typically, extraordinary expenses are expenses like daycare and orthodontics — big, important expenses that most but not all children need. Where the children have extraordinary expenses, the parents contribute to those expenses in proportion to their incomes. For example, if one parent earns $30,000 per year and the other earns $20,000, the first parent would have to pay 60% of an extraordinary expense and the other would have to pay 40%.

'''Further reading:'''
Chapter on:
*[[Child Support]], in particular the section on the [[Child Support Guidelines]]

===Spousal support===

Spousal support is money paid by one spouse to the other spouse, for one of three reasons. Spousal support may be paid to help the other spouse meet their living expenses, or it may be paid to compensate a spouse for the economic consequences of decisions made during the relationship. Spousal support may also be paid because a spouse agreed to pay it, perhaps in a marriage agreement or a living-together agreement, but more commonly in a separation agreement. Spousal support is not automatically payable just because a couple were married or unmarried spouses; the person who wants support must prove that they are entitled to get it.

The decisions made by a couple during their relationship can cause a spouse to be entitled to compensation if those decisions took the spouse out of the paid workforce, required the spouse to move to a place where there was less financial opportunity, prevented the spouse from taking a promotion or have made it more difficult for the spouse to get a job after separation. Say, for example, a couple decided that one of them should quit work and stay at home to raise the children and be a homemaker. A spouse who stays at home may have to leave a job or a career, and it can be very difficult to return to work after being out of the workforce, particularly when the relationship was long and there is no career to return to.

The end of a relationship can cause a spouse to need financial help. After a couple separate, the same amount of money they had during the relationship now has to pay for two rent bills, two hydro bills and two grocery bills. When the couple were together, however, their combined incomes only had to pay for one rent bill, one hydro bill and one phone bill.

Spousal support is usually paid every month for a certain amount of time, although it can be paid indefinitely or be paid in a large, single payment. The amount of spousal support that is paid is usually an amount that the person with more money can afford to pay, using the money left over after that person's basic living expenses have been paid.

When a relationship was very long or the couple are older, spousal support can be paid forever or until they both get pensions or government benefits like CPP. When the couple is younger, spousal support is usually only paid for a specific amount of time. This is because the person getting support has an obligation to try to become financially independent from the person paying support.

The amount of spousal support that should be paid and the length of time support should be paid can also be calculated using the [[Spousal Support Advisory Guidelines]]. The Advisory Guidelines uses two formulas, one for when a couple has children and one for when they don't, that calculate how much support should be paid according to the length of the relationship and each party's annual income.

There are three very important things to know about the Advisory Guidelines:

#The Advisory Guidelines is not a law and there is no rule saying that the Advisory Guidelines formulas must be used. Despite this, lawyers and the court use the Advisory Guidelines almost all the time when spousal support is going to be paid.
#The Advisory Guidelines is only used when someone is proven to be entitled to receive support; if there is no entitlement, the Advisory Guidelines doesn't apply.
#The formulas the Advisory Guidelines describes are very complicated. In particular, the formulas that are used when a couple has children cannot be done without a computer program.

Only people who are married spouses or unmarried spouses can ask for spousal support. Married spouse must ask for spousal support within two years of their divorce. Unmarried spouses must ask for spousal support within two years of their separation.

'''Further reading:'''
Chapter on:
*[[Spousal Support]], in particular the section on [[The Spousal Support Advisory Guidelines]]

===Dividing family property and family debt===

Married spouses and unmarried spouses who have lived together for at least two years are each entitled to half of the ''family property'' when their relationships end. Family property includes:

*the property the spouses got during their relationship, including real estate as well as personal property,
*bank accounts, investments, RRSPs and pensions,
*the interest of a spouse in a company, business or partnership,
*debts owed to a spouse, and
*the increase in value of ''excluded property'' during the relationship.

Each spouse is entitled to keep all of their excluded property. Excluded property includes:

*the property owned by each spouse on the date they began to live together or the date they married, whichever is earlier,
*gifts or inheritances received during the relationship,
*certain kinds of court awards and insurance payments made during the relationship, and
*property bought during the relationship with excluded property.

Each spouse is also responsible for half of the ''family debt''. Family debt includes:

*all debts incurred by either spouse during the relationship, and
*debt incurred after separation, if the debt was incurred to maintain family property.

The spouses' right to a share in the family property and obligation to share in the family debt happens when the spouses separate. Separation doesn't always happen when someone moves out. Spouses can be separated while living together, as long as one of them has said the relationship is over and then the couple has behaved as if it was over, for example by stopping sleeping together or eating together, and stopping doing chores for each other.

'''Further reading:'''
Chapter on:
*[[Property & Debt in Family Law Matters]]

===Separation and divorce===

You don't need a legal document to separate, and you don't need to see a lawyer or a judge to separate. You just leave the relationship or announce that it's over and then behave like it's over. There is no such thing as a ''legal separation'' in British Columbia.

For unmarried spouses and other unmarried couples, their relationship is over the moment they separate. That's it, it's done! There is no such thing as a ''common-law marriage'', and unmarried spouses don't need to get divorced.

For a marriage to end, however, married spouses must divorce, and that means they must get a court order saying that they are divorced. A married couple can be separated for many years but still be married if they haven't gotten a divorce order.

Sometimes married people don't get around to getting a divorce for many, many years. That's fine. The only thing a separated married person can't do that an unmarried person can do is marry again. Separated married people can date someone else, live with someone else, be in a unmarried relationship with someone else, have property in their own name, have bank accounts and credit cards in their own name, and so on.

There is only one reason why a court will make a divorce order: it believes that the marriage has broken down. The breakdown of a marriage can be shown in one of three ways:

#the couple have separated and have stayed separated for more than one year,
#a spouse has had sex with someone other than their spouse, called ''adultery'', or
#a spouse has been verbally, emotionally or physically abusive to the other spouse, which is what the ''[[Divorce Act]]'' means by ''cruelty''.

To get a divorce order, you have to start a court proceeding. You don't have to ask the court for anything else except a divorce, if a divorce is all you need. When a couple agrees to get a divorce, they can get a divorce using the do-it-yourself desk order process, and they won't have to go in front of a judge ever.

'''Further reading:'''
Chapter on:
*[[Separation & Divorce]]

==Information for people who are new to Canada==

In Canada, men and women have exactly the same rights. There is no difference between the rights a man has and the rights that a woman has, whether they are married to each other or not. Men do not have the right to control women or tell them what they may and may not do, even if a couple are married to one another.

Our courts are open to everybody who lives in Canada, not only to people who have Canadian citizenship. People who are new to Canada can make a claim in court, regardless of their citizenship status, and regardless of whether they have permanent residency in Canada or not.

There is no law that requires someone who is unhappy in a marriage to stay in that marriage. If someone wants to leave a relationship, they can, and that person does not need the permission or agreement of the other spouse to leave.

In Canada, there is no requirement for either dowry or dower to be paid when a couple marries or divorces. Even if a religion requires such a payment, the religious duty is not legally binding in Canada.

If an arranged marriage has been proposed, the parties must still agree to the marriage of their own free will. There is no law that allows someone to be forced to marry someone else. An agreement between relatives about a marriage is not legally binding on the people who are supposed to get married.

When one spouse sponsors another spouse to come to Canada, that person will usually sign a ''sponsorship agreement'' with the government. This agreement requires the sponsor to support the person who is coming to Canada, whether they stay married, separate or divorce. This agreement is only between the sponsor and the government. If the person coming to Canada needs spousal support, for example, they can ask the court for an order that spousal support be paid.

Separation does not automatically mean that someone new to Canada will have to leave the country. People who are permanent residents, for example, will usually be allowed to stay, regardless of what is happening in their relationship with their sponsors. You should, however, speak to an immigration lawyer just to be sure.

In Canada you must have a court order to divorce and legally end a marriage. Religious divorces are not recognized in Canada as divorces that legally end a marriage. The decisions of religious tribunals about how a separated couple will share their property or manage the care and control of their children may not be recognized in British Columbia.

'''Further reading:'''

*[[Other Family Law Issues]], particular the section on [[Other_Family_Law_Issues#Immigration_issues|immigration issues]]

{{REVIEWED | reviewer = [[JP Boyd]], August 8, 2017}}

{{JP Boyd on Family Law Navbox|type=started}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Introduction to JP Boyd on Family Law

2017-08-13T17:27:19Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC}}

Welcome to ''JP Boyd on Family Law''.

You might want to know about your own family law problem, or you might be helping someone else deal with their own family law problem. Either way, this is for you. In this wikibook, we — [[JP Boyd|John-Paul Boyd]] and the team of experienced family law lawyers who serve as editors — guide you through family law in British Columbia as if we were talking to you.

For more than a decade, British Columbians used John-Paul Boyd's BC Family Law Resource website as their go-to place for family law information. John-Paul tried not to assume you would know about legal language and legal processes. He talked like an ordinary person. He explained legal terms and gave you tips on how to do things in plain language. This wikibook tries to do the same thing.

This wikibook is divided into chapters about the major areas of family law. In each chapter you will find an overview, then additional sections that give you more detailed information. Each chapter makes sense by itself. You won't have to go hunting for information in other chapters.

In addition to the chapters, this resource has a part called ''How Do I?'' which provides brief information on an array of family law questions, from "How Do I Get Married in British Columbia?" to "How Do I Find My Ex?" to "How Do I Address the Judge?" That's the place to go for a quick introduction to a procedure, or for a summary of the steps you have to take to do something.

The best place to start is right here in Getting Started, with the [[Family Law in British Columbia]] section. That section gives you the really big picture, and will be particularly helpful for people who have never had to deal with a legal problem before or who are new to Canada. After that, you'll want to move on to the chapters that interest you.

Let us know what you think of this wikibook. We aim to keep updating and changing it to make sure it meets your needs. Please send your comments to us at [mailto:editor@clicklaw.bc.ca editor@clicklaw.bc.ca].

::- Editorial Team, for ''JP Boyd on Family Law''

==Why are we doing this?==

You might be reading this text in the online wikibook ''[[JP Boyd on Family Law]]'', in an offline version in PDF format, or in a thick, bound and printed book. We produced this resource as a wikibook so that free family law information can reach more people. Family law issues touch the lives of a lot of British Columbians, and when you're dealing with these issues, you need all the help and support you can get.

Clicklaw Wikibooks teamed up with [[JP Boyd|John-Paul Boyd]] in 2012, when he was still practicing law in Vancouver, to turn his popular family law website, www.bcfamilylawresource.com, into this new Clicklaw Wikibook title, ''JP Boyd on Family Law''. The migration of John-Paul's website into this new format preserves the accessibility, scope and tone of the original, which provided free family law information to more than 27,000 British Columbians a month and had been published for more than a decade.

As a wikibook, ''JP Boyd on Family Law'' continues John-Paul's commitment to explaining the legal system and providing free, plain language information on family law and divorce law, court processes and other family law dispute resolution mechanisms, while harnessing the versatility and strength of [http://www.mediawiki.org MediaWiki], the same open-source wiki platform that powers Wikipedia.

The clean page layout of the wikibook in its [http://wiki.clicklaw.bc.ca online form] provides a familiar user experience, and the online search functionality enables fulltext searching over the entire wikibook as well as other titles on Clicklaw Wikibooks. The wiki platform's ''book creator'' function allows libraries and individual readers to print as little or as much of this wikibook as they want, in convenient, user-friendly PDF or book formats that expand the reach of this resource to benefit British Columbians online and off.

==A collaborative, community resource==

John-Paul Boyd continues at the helm of ''[[JP Boyd on Family Law]]'' and is joined by an [[:Category:JP Boyd on Family Law Contributors | editorial team]] of experienced family law lawyers who are committed to delivering comprehensive, useful and easy to understand family law information. The editorial team provides an enriching diversity of opinion, knowledge and perspective, while the Clicklaw Wikibooks platform lets them respond to changes in the law quickly. The term ''wiki'' means "fast" or "quick" in Hawaiian, and we hope that updates will be available to readers at [[Main Page|wiki.clicklaw.bc.ca]] as soon as possible.

John-Paul and the wikibook's editorial team are supported by the broader [[:Category:Clicklaw Wikibooks Advisory Committee| Clicklaw Wikibooks Advisory Committee]], composed of lawyers, public and legal library representatives, and educators.

==Clicklaw Wikibooks==

Transitioning John-Paul's family law website to a wiki format enables a highly accessible experience both electronically and in print. You might be reading this page on a laptop in a coffee shop, or you could be flipping through this book at a public library. Both digital and print formats are made possible by the technology that powers Clicklaw Wikibooks, and helps provide legal information for the public and improve the legal collections of public libraries in British Columbia.

If you are interested in contributing as a writer, commentator or as a member of the editorial team, or have any feedback or other remarks about this wikibook, please contact [mailto:editor@clicklaw.bc.ca editor@clicklaw.bc.ca].

[[image:JP_Boyd_on_Family_Law_cover_image.jpg|thumb|center|300px|Cover image for ''JP Boyd on Family Law'', ISSN 2292-1400]]

{{JP Boyd on Family Law Navbox|type=started}}__NOGLOSSARY__>

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Introduction to JP Boyd on Family Law

2017-08-13T17:26:59Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC}}

Welcome to ''JP Boyd on Family Law''.

You might want to know about your own family law problem, or you might be helping someone else deal with their own family law problem. Either way, this is for you. In this wikibook, we — [[JP Boyd|John-Paul Boyd]] and the team of experienced family law lawyers who serve as editors — guide you through family law in British Columbia as if we were talking to you.

For more than a decade, British Columbians used John-Paul Boyd's BC Family Law Resource website as their go-to place for family law information. John-Paul tried not to assume you would know about legal language and legal processes. He talked like an ordinary person. He explained legal terms and gave you tips on how to do things in plain language. This wikibook tries to do the same thing.

This wikibook is divided into chapters about the major areas of family law. In each chapter you will find an overview, then additional sections that give you more detailed information. Each chapter makes sense by itself. You won't have to go hunting for information in other chapters.

In addition to the chapters, this resource has a part called ''How Do I?'' which provides brief information on an array of family law questions, from "How Do I Get Married in British Columbia?" to "How Do I Find My Ex?" to "How Do I Address the Judge?" That's the place to go for a quick introduction to a procedure, or for a summary of the steps you have to take to do something.

The best place to start is right here in Getting Started, with the [[Family Law in British Columbia]] section. That section gives you the really big picture, and will be particularly helpful for people who have never had to deal with a legal problem before or who are new to Canada. After that, you'll want to move on to the chapters that interest you.

Let us know what you think of this wikibook. We aim to keep updating and changing it to make sure it meets your needs. Please send your comments to us at [mailto:editor@clicklaw.bc.ca editor@clicklaw.bc.ca].

::- Editorial Team, for ''JP Boyd on Family Law''

==Why are we doing this?==

You might be reading this text in the online wikibook ''[[JP Boyd on Family Law]]'', in an offline version in PDF format, or in a thick, bound and printed book. We produced this resource as a wikibook so that free family law information can reach more people. Family law issues touch the lives of a lot of British Columbians, and when you're dealing with these issues, you need all the help and support you can get.

Clicklaw Wikibooks teamed up with [[JP Boyd|John-Paul Boyd]] in 2012, when he was still practicing law in Vancouver, to turn his popular family law website, www.bcfamilylawresource.com, into this new Clicklaw Wikibook title, ''JP Boyd on Family Law''. The migration of John-Paul's website into this new format preserves the accessibility, scope and tone of the original, which provided free family law information to more than 27,000 British Columbians a month and had been published for more than a decade.

As a wikibook, ''JP Boyd on Family Law'' continues John-Paul's commitment to explaining the legal system and providing free, plain language information on family law and divorce law, court processes and other family law dispute resolution mechanisms, while harnessing the versatility and strength of [http://www.mediawiki.org MediaWiki], the same open-source wiki platform that powers Wikipedia.

The clean page layout of the wikibook in its [http://wiki.clicklaw.bc.ca online form] provides a familiar user experience, and the online search functionality enables fulltext searching over the entire wikibook as well as other titles on Clicklaw Wikibooks. The wiki platform's ''book creator'' function allows libraries and individual readers to print as little or as much of this wikibook as they want, in convenient, user-friendly PDF or book formats that expand the reach of this resource to benefit British Columbians online and off.

==A collaborative, community resource==

John-Paul Boyd continues at the helm of ''[[JP Boyd on Family Law]]'' and is joined by an [[:Category:JP Boyd on Family Law Contributors | editorial team]] of experienced family law lawyers who are committed to delivering comprehensive, useful and easy to understand family law information. The editorial team provides an enriching diversity of opinion, knowledge and perspective, while the Clicklaw Wikibooks platform lets them respond to changes in the law quickly. The term ''wiki'' means fast or quick in Hawaiian, and we hope that updates will be available to readers at [[Main Page|wiki.clicklaw.bc.ca]] as soon as possible.

John-Paul and the wikibook's editorial team are supported by the broader [[:Category:Clicklaw Wikibooks Advisory Committee| Clicklaw Wikibooks Advisory Committee]], composed of lawyers, public and legal library representatives, and educators.

==Clicklaw Wikibooks==

Transitioning John-Paul's family law website to a wiki format allows you to find the family law information that you need in a highly accessible format, both electronically and in print. You might be reading this page on a laptop in a coffee shop, or you could be flipping through this book at a public library. Both digital and print formats are made possible by the technology that powers Clicklaw Wikibooks, and helps provide legal information for the public and improve the legal collections of public libraries in British Columbia.

If you are interested in contributing as a writer, commentator or as a member of the editorial team, or have any feedback or other remarks about this wikibook, please contact [mailto:editor@clicklaw.bc.ca editor@clicklaw.bc.ca].

[[image:JP_Boyd_on_Family_Law_cover_image.jpg|thumb|center|300px|Cover image for ''JP Boyd on Family Law'', ISSN 2292-1400]]

{{JP Boyd on Family Law Navbox|type=started}}__NOGLOSSARY__>

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Violence and the Criminal Code

2017-08-13T17:18:00Z

Penny Goldsmith:

Family Violence and the Criminal Code

2017-08-13T17:17:38Z

Penny Goldsmith:

Civil Claims and Family Violence

2017-08-13T17:08:41Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge
|ChapterEditors = [[Gayle Raphanel]] and [[Samantha Simpson]]
}}
==Civil claims for family violence==
The terms ''civil claims'' and ''tort claims'' are used interchangeably here. While most family law claims (e.g. claims for divorce, spousal support, division of property, etc.) are ''family law issues'' that are governed by legislation like the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', the right to sue someone for inflicting violence is its own claim in law. Claims for ''assault and battery'' are ''civil claims''/''tort claims'', and exist outside of the ''[[Family Law Act]]''.

Certainly, tort claims for abuse and violence can overlap with family law issues, but it helps to know that tort claims for abuse and violence arise independently from the ''[[Family Law Act]]'' and its treatment of ''family violence''. The ''Family Law Act'' has its own definition of ''family violence'' (including non-physical forms), emphasizes its impact on decisions around the care of children, and provides specific mechanisms like protection orders that are discussed in the section of on [[Family Violence and the Family Law Act]] in this chapter.

==Introduction to tort law claims==
The word ''tort'' comes from the Latin word for ''wrong'', and tort law deals with things like personal injuries, motor vehicle accidents, negligence, assault and battery, trespass, etc. The legal definition of a tort is "a breach of a duty owed by someone to someone else which gives rise to a cause of action," like a duty not to hit someone, a duty to drive carefully, or a duty not to dig a hole in your lawn that someone might fall into. Generally speaking, these sort of tort claims aren't spelled out in laws the way that the rules against robbery or assault are set out in the ''Criminal Code''. Tort claims are part of the ''common law'', the law that the courts (as opposed to the legislature) has created and maintained for hundreds of years.

If a claim for assault and battery is made in a family law claim, it will be treated by a judge as a ''tort law'' claim, and bring ''common law'' principles and rules into the case.

Tort claims are not like criminal charges where the court can punish the wrong-doer with jail or a criminal record. The remedy for a victim of family violence is primarily ''restorative'' or ''compensatory''. They would ask for an award of ''damages'' to make good the harm he or she suffered and its consequences. Damages are money payments and may be awarded for, among other things:

*pain and suffering resulting from the violence, sometimes just called general damages,
*loss of enjoyment of life as a result of the impact of the violence,
*past wages lost because of the violence,
*future wages lost because of some inability, illness or other impairment resulting from the violence; this is sometimes referred to as lost earning capacity;
*rehabilitation and job retraining costs, and
*past and future medical care expenses related to the injuries suffered from the violence.

Damages can also be claimed as ''punitive damages'' or ''aggravated damages''.

Aggravated damages are awarded when the wrongful act took place in humiliating or undignified circumstances or when the wrongful act was particularly horrendous. By law, aggravated damages are to be combined with general damages. Punitive damages are not intended as compensation to the victim, but rather are awarded when the wrongful act deserves additional punishment because it was of a "harsh, vindictive, reprehensible and malicious nature." They are an effort by the court to deter others from committing similar acts.

The most common tort claim in situations of family violence is a claim based on ''assault and battery''. ''Assault'' technically means wrongfully threatening to harm someone. ''Battery'' means wrongfully attacking and harming someone. Assault and battery can include sexual assault, and a spouse can make a tort claim against their former spouse for sexual assault.

==Starting a civil claim==
A tort claim must be made by the person who has suffered the family violence. In family law proceedings, tort claims are usually included with the ''other'' relief asked for in the [[Form F3 Notice of Family Claim]] or [[Form F5 Counterclaim]]. Although a tort claim can be made on its own, without claims for things like divorce, parenting arrangements, and so forth, if you want to make a claim in tort as well as other family law claims, it is very important to include all your claims in one proceeding because otherwise you might not be permitted to bring the tort claim separately at a later date.

Tort claims can only be heard by the Supreme Court. The Provincial Court does not have the jurisdiction to deal with tort claims.

==The challenges of tort claims==

This discussion is not meant to discourage persons who have suffered family violence from making tort claims for damages resulting from family violence. It is only meant to bring to readers' attentions the difficulties that can sometimes accompany tort claims relating to family violence. Notwithstanding these difficulties, it can be empowering and liberating for a victimized spouse to hold an abusive spouse accountable for family violence and see justice done. If you have been sexually and/or physically assaulted, you should talk to a lawyer who is experienced in handling such claims and seek advice.

The first drawback of a tort claim is that you will, in all likelihood, have to hire a lawyer if you want to make a claim in tort against your spouse. The law governing tort claims is not set out in a statute, like the ''[[Family Law Act]]'' or the ''[http://canlii.ca/t/8487 Negligence Act]'', it's mostly based on the common law. In order to succeed in your claim, you will have to prove that the assault or sexual assault took place, and that injuries resulted. It is often quite complicated to prove injuries, especially where they are mainly psychological or emotional.

Lawyers, of course, are expensive. While you may get some of your legal costs awarded to you if you're successful, that only happens at the end of the day after you've already paid a few months' or a few years' worth of bills. Lawyers who practise family law do not work on a contingency basis where they get paid out of the client's award. They charge by the hour.

Secondly, even if you're successful, your spouse must have some money or other assets from which he or she can pay your damages if you win. It's no good to spend tens of thousands of dollars on legal fees and win only to find that your spouse has no way to pay your award. This is called a ''dry judgment''.

Note, however, that courts have factored damages for assault and battery into the calculation of who gets what when it comes to division of assets. In ''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC), a tort claim was made in the same proceeding as a division of property claim. The court divided the family property equally between the parties, but awarded Mrs. Megeval $139,150 in damages for injuries resulting from assault. This amount was paid from Mr. Megeval’s share of the family property.

A third drawback to making a tort claim is you will have to testify about the family violence and the effect it had on you in a very open, honest and personal manner. You will have to disclose your medical and counselling records, if there are any. You may also have to submit to medical and psychological examinations, both to prove your claim and sometimes by an independent expert appointed by your ex-partner.

==Limitation periods==
There is not likely any limitation period that applies to violence between spouses or parents and children.

A ''limitation period'' is a deadline by which a claim must be made and an action started. If there is an applicable limitation period, once it is expired you cannot make the claim. For assaults involving people whose relationship is not "personal" or one of "dependency", the limitation period is generally two years after the incident.

Under (s. 3 (1)) of the provincial ''[http://canlii.ca/t/8qx3 Limitation Act]'' there is no limitation period to claims based on sexual misconduct.

Similarly, there is no limitation period on claims relating to non-sexual assault if the claimant was a minor or living in a personal or dependency relationship (s. 3 (i) (k)).

==Awards==

The amount of the damages that a court may award for tort claims based on family violence always depends on the circumstances. It is important to get legal advice to decide whether or not making such a claim is economically worthwhile in your particular circumstances. The range of outcomes is very wide and many factors go into a judge’s assessment of the appropriate award but here are some awards that the courts have made for assault and battery in a family context:

* In ''[http://canlii.ca/t/g2h5c A.M. v. S.O.], 2014 BCSC 4 physical assault in the form of an open-handed blow to the head resulted in $20,000 for general damages.
* In ''[http://canlii.ca/t/fsxwh Bird v. Kohl]'', 2012 BCSC 1424 the serious shoulder fracture, concussion, lacerations and scarring that resulted from repeated strikes with a shovel handle amounted to $75,000 for general damages, $15,000 for aggravated damages, $40,000 for lost wages and $25,000 for lost earning capacity.
* In ''[http://canlii.ca/t/fwktw Constantini v. Constantini,]'' 2013 ONSC 1626 verbal abuse during the relationship and pre-meditated break-in and aggressive assault post-separation did not produce permanent disability but it did result in post-traumatic stress disorder. $15,000 was awarded for general and aggravated damages.
* In ''[http://canlii.ca/t/fs8l9 D.G. v. R.M.]'', 2012 SKQB 296 a single instance of “horrific” sexual assault including striking, kicking and biting. $35,000 was awarded for general damages.
* In ''[http://canlii.ca/t/1k2jm Gould v. Sandau]'' 2005 BCCA 190, the trial judge awarded $2,500 for an assault that broke a hand.
* In ''[http://canlii.ca/t/1f56v Megeval v. Megeval],'' 1997 CanLII 3721 (BCSC) assault causing permanent disability resulted in $45,000 for the injury, $66,000 for lost wages and retraining, $2,500 for medical care and $5,000 in punitive damages.
* In ''N.C. v. W.R.B.'' [1999] O.J. No. 3633 (Ont. S.C.J.) multiple instances of sexual, physical verbal and emotional abuse that caused post-traumatic stress disorder was awarded $65,000 for general damages and $25,000 for aggravated damages.
* In ''[http://canlii.ca/t/fps0x Shaw v. Brunelle]'', 2012 ONSC 590 a serious wrist fracture resulting from physical ejection from the home resulted in $65,000 for general and aggravated damages, $25,000 for lost earning capacity, and an unspecified amount for cost of future care.

These cases have been included only to give you a general idea of how the courts have treated tort claims based on family violence in the past. You should not rely on these cases to fix a dollar amount to your claim – seek legal advice from a lawyer with experience in this area.

==Resources and links==
===Legislation===

* ''[http://canlii.ca/t/8qx3 Limitation Act]''

{{REVIEWED | reviewer = [[Gayle Raphanel]] and [[Samantha Simpson]], August 8, 2017}}

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Civil Claims and Family Violence

2017-08-13T17:08:16Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge
|ChapterEditors = [[Gayle Raphanel]] and [[Samantha Simpson]]
}}
==Civil claims for family violence==
The terms ''civil claims'' and ''tort claims'' are used interchangeably here. While most family law claims (e.g. claims for divorce, spousal support, division of property, etc.) are ''family law issues'' that are governed by legislation like the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', the right to sue someone for inflicting violence is its own claim in law. Claims for ''assault and battery'' are ''civil claims''/''tort claims'', and exist outside of the ''[[Family Law Act]]''.

Certainly, tort claims for abuse and violence can overlap with family law issues, but it helps to know that tort claims for abuse and violence arise independently from the ''[[Family Law Act]]'' and its treatment of ''family violence''. The ''Family Law Act'' has its own definition of ''family violence'' (including non-physical forms), emphasizes its impact on decisions around the care of children, and provides specific mechanisms like protection orders that are discussed in the section of on [[Family Violence and the Family Law Act]] in this chapter.

==Introduction to tort law claims==
The word ''tort'' comes from the Latin word for ''wrong'', and tort law deals with things like personal injuries, motor vehicle accidents, negligence, assault and battery, trespass, etc. The legal definition of a tort is ''a breach of a duty owed by someone to someone else which gives rise to a cause of action'', like a duty not to hit someone, a duty to drive carefully, or a duty not to dig a hole in your lawn that someone might fall into. Generally speaking, these sort of tort claims aren't spelled out in laws the way that the rules against robbery or assault are set out in the ''Criminal Code''. Tort claims are part of the ''common law'', the law that the courts (as opposed to the legislature) have created and maintained for hundreds of years.

If a claim for assault and battery is made in a family law claim, it will be treated by a judge as a ''tort law'' claim, and bring ''common law'' principles and rules into the case.

Tort claims are not like criminal charges where the court can punish the wrong-doer with jail or a criminal record. The remedy for a victim of family violence is primarily ''restorative'' or ''compensatory''. They would ask for an award of ''damages'' to make good the harm the person suffered and its consequences. Damages are money payments and may be awarded for, among other things:

*pain and suffering resulting from the violence, sometimes just called general damages,
*loss of enjoyment of life as a result of the impact of the violence,
*past wages lost because of the violence,
*future wages lost because of some inability, illness or other impairment resulting from the violence (this is sometimes referred to as lost earning capacity),
*rehabilitation and job retraining costs, and
*past and future medical care expenses related to the injuries suffered from the violence.

Damages can also be claimed as ''punitive damages'' or ''aggravated damages''.

Aggravated damages are awarded when the wrongful act took place in humiliating or undignified circumstances or when the wrongful act was particularly horrendous. By law, aggravated damages are to be combined with general damages. Punitive damages are not intended as compensation to the victim, but rather are awarded when the wrongful act deserves additional punishment because it was of a "harsh, vindictive, reprehensible and malicious nature." They are an effort by the court to deter others from committing similar acts.

The most common tort claim in situations of family violence is a claim based on ''assault and battery''. ''Assault'' technically means wrongfully threatening to harm someone. ''Battery'' means wrongfully attacking and harming someone. Assault and battery can include sexual assault, and a spouse can make a tort claim against their former spouse for sexual assault.

==Starting a civil claim==
A tort claim must be made by the person who has suffered the family violence. In family law proceedings, tort claims are usually included with the ''other'' relief asked for in the [[Form F3 Notice of Family Claim]] or [[Form F5 Counterclaim]]. Although a tort claim can be made on its own, without claims for things like divorce, parenting arrangements, and so forth, if you want to make a claim in tort as well as other family law claims, it is very important to include all your claims in one proceeding because otherwise you might not be permitted to bring the tort claim separately at a later date.

Tort claims can only be heard by the Supreme Court. The Provincial Court does not have the jurisdiction to deal with tort claims.

==The challenges of tort claims==

This discussion is not meant to discourage persons who have suffered family violence from making tort claims for damages resulting from family violence. It is only meant to bring to readers' attentions the difficulties that can sometimes accompany tort claims relating to family violence. Notwithstanding these difficulties, it can be empowering and liberating for a victimized spouse to hold an abusive spouse accountable for family violence and see justice done. If you have been sexually and/or physically assaulted, you should talk to a lawyer who is experienced in handling such claims and seek advice.

The first drawback of a tort claim is that you will, in all likelihood, have to hire a lawyer if you want to make a claim in tort against your spouse. The law governing tort claims is not set out in a statute, like the ''[[Family Law Act]]'' or the ''[http://canlii.ca/t/8487 Negligence Act]'', it's mostly based on the common law. In order to succeed in your claim, you will have to prove that the assault or sexual assault took place, and that injuries resulted. It is often quite complicated to prove injuries, especially where they are mainly psychological or emotional.

Lawyers, of course, are expensive. While you may get some of your legal costs awarded to you if you're successful, that only happens at the end of the day after you've already paid a few months' or a few years' worth of bills. Lawyers who practise family law do not work on a contingency basis where they get paid out of the client's award. They charge by the hour.

Secondly, even if you're successful, your spouse must have some money or other assets from which they can pay your damages if you win. It's no good to spend tens of thousands of dollars on legal fees and win only to find that your spouse has no way to pay your award. This is called a ''dry judgment''.

Note, however, that courts have factored damages for assault and battery into the calculation of who gets what when it comes to division of assets. In ''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC), a tort claim was made in the same proceeding as a division of property claim. The court divided the family property equally between the parties, but awarded Mrs. Megeval $139,150 in damages for injuries resulting from assault. This amount was paid from Mr. Megeval’s share of the family property.

A third drawback to making a tort claim is you will have to testify about the family violence and the effect it had on you in a very open, honest and personal manner. You will have to disclose your medical and counselling records, if there are any. You may also have to submit to medical and psychological examinations, both to prove your claim and sometimes by an independent expert appointed by your ex-partner.

==Limitation periods==

A ''limitation period'' is a deadline by which a claim must be made and an action started. If there is an applicable limitation period, once it is expired you cannot make the claim. For assaults involving people whose relationship is not personal or one of dependency, the limitation period is generally two years after the incident.

There is not likely any limitation period that applies to violence between spouses or parents and children.

Under (s. 3 (1)) of the provincial ''[http://canlii.ca/t/8qx3 Limitation Act]'' there is no limitation period to claims based on sexual misconduct.

Similarly, there is no limitation period on claims relating to non-sexual assault if the claimant was a minor or living in a personal or dependency relationship (s. 3 (i) (k)).

==Awards==

The amount of the damages that a court may award for tort claims based on family violence always depends on the circumstances. It is important to get legal advice to decide whether or not making such a claim is economically worthwhile in your particular circumstances. The range of outcomes is very wide and many factors go into a judge’s assessment of the appropriate award but here are some awards that the courts have made for assault and battery in a family context:

* In ''[http://canlii.ca/t/g2h5c A.M. v. S.O.], 2014 BCSC 4 physical assault in the form of an open-handed blow to the head resulted in $20,000 for general damages.
* In ''[http://canlii.ca/t/fsxwh Bird v. Kohl]'', 2012 BCSC 1424 the serious shoulder fracture, concussion, lacerations and scarring that resulted from repeated strikes with a shovel handle amounted to $75,000 for general damages, $15,000 for aggravated damages, $40,000 for lost wages and $25,000 for lost earning capacity.
* In ''[http://canlii.ca/t/fwktw Constantini v. Constantini,]'' 2013 ONSC 1626 verbal abuse during the relationship and pre-meditated break-in and aggressive assault post-separation did not produce permanent disability but it did result in post-traumatic stress disorder. $15,000 was awarded for general and aggravated damages.
* In ''[http://canlii.ca/t/fs8l9 D.G. v. R.M.]'', 2012 SKQB 296 a single instance of “horrific” sexual assault including striking, kicking and biting. $35,000 was awarded for general damages.
* In ''[http://canlii.ca/t/1k2jm Gould v. Sandau]'' 2005 BCCA 190, the trial judge awarded $2,500 for an assault that broke a hand.
* In ''[http://canlii.ca/t/1f56v Megeval v. Megeval],'' 1997 CanLII 3721 (BCSC) assault causing permanent disability resulted in $45,000 for the injury, $66,000 for lost wages and retraining, $2,500 for medical care and $5,000 in punitive damages.
* In ''N.C. v. W.R.B.'' [1999] O.J. No. 3633 (Ont. S.C.J.) multiple instances of sexual, physical verbal and emotional abuse that caused post-traumatic stress disorder was awarded $65,000 for general damages and $25,000 for aggravated damages.
* In ''[http://canlii.ca/t/fps0x Shaw v. Brunelle]'', 2012 ONSC 590 a serious wrist fracture resulting from physical ejection from the home resulted in $65,000 for general and aggravated damages, $25,000 for lost earning capacity, and an unspecified amount for cost of future care.

These cases have been included only to give you a general idea of how the courts have treated tort claims based on family violence in the past. You should not rely on these cases to fix a dollar amount to your claim – seek legal advice from a lawyer with experience in this area.

==Resources and links==
===Legislation===

* ''[http://canlii.ca/t/8qx3 Limitation Act]''

{{REVIEWED | reviewer = [[Gayle Raphanel]] and [[Samantha Simpson]], August 8, 2017}}

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[[Category:JP Boyd on Family Law]]

Family Violence in the Family Law Act and the Divorce Act

2017-08-13T16:56:32Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge
|ChapterEditors = [[Gayle Raphanel]] and [[Samantha Simpson]]
}}
{{Clicklawbadge
|resourcetype = critical resources and common questions on
|link = [http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence family violence issues]
}}

==Family violence under the ''Family Law Act''==
Family violence is dealt with under the ''[[Family Law Act]]'' when there are questions about:
* protecting an at-risk family member from another family member, and/or
* parenting arrangements and what is in the best interests of a child.

Part 9 of the ''Act'' deals with protection orders that can restrain a family member from communicating with, following or going near another family member, or from possessing weapons. These are discussed first.

Part 4, Division 1 of the ''Act'' deals with care of and time with children. Sections 37 and 38 say family violence as a very important factor when assessing the ''best interests of a child'' and making an agreement or order about care of and time with children.

===Definition of family violence===
The ''[[Family Law Act]]'' defines family violence in a broad and inclusive way to capture more than just forceful physical contact. Non-physical forms of abuse such as harassment, intimidation and even financial sabotage can qualify where these actions instill fear. No long-term intention to follow through with the act being threatened is required for it to be considered family violence.

Section 1 of the ''[[Family Law Act]]'' defines the term:

<blockquote><tt>"family violence" includes</tt></blockquote>
<blockquote><blockquote><tt>(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) sexual abuse of a family member,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) attempts to physically or sexually abuse a family member,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) psychological or emotional abuse of a family member, including</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) stalking or following of the family member, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iv) intentional damage to property, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) in the case of a child, direct or indirect exposure to family violence</tt></blockquote></blockquote>

So far, the courts have found a wide range of actions to be ''family violence''. The following are just some examples of family violence:
* In ''[http://canlii.ca/t/gx9s1 K.R. v. J.D.]'', 2017 BCSC 182, a parent's derogatory and demeaning comments about the other parent, on occasion in the child’s presence, “clearly amount to family violence” since they disturbed the child and caused the child emotional harm.
* In ''[http://canlii.ca/t/fxjb5 B. (M.W.) v. B. (A.R.)]'', 2013 BCSC 885, a mother was found to have committed family violence for repeatedly interfering with the father’s access to the children and refusing to settle orders that were drafted by lawyers and these actions prolonged and intensified the litigation.
* In ''[http://canlii.ca/t/gdt2h Hokhold v. Gerbrandt]'', 2014 BCSC 1875, the Court determined that the father's emotionally abusive conduct which included sending excessive demanding emails, failing to pay support, and threatening to close his dental practice, constituted family violence.
* In ''[http://canlii.ca/t/gh679 R. (C.) v. (M.A.)]'', 2015 BCPC 76 the Court found that a father’s threats to use his stronger financial position to fight the mother “[until] she lives in a box” constituted family violence.
* In ''[http://canlii.ca/t/g7233 R. (L.A.) v. R. (E.J.)]'', 2014 BCSC 966, the Court found that disparaging remarks made to the children about their mother, as well as disparaging comments made to the mother in the children’s presence, constituted emotional abuse.
* ''[http://canlii.ca/t/glx9n F.(C.) v. V. (D)]'', 2015 BCPC 309, the Court found that there had been family violence as the father broke the mother’s cellphone and a picture on the wall, then kicked a hole in the bathroom door.

A lot depends on the specific facts of the case, however. The following are some examples of where the court determined that there was no family violence:

* In ''[http://canlii.ca/t/g2zjp S. (L.) v. S. (G).]'', 2014 BCSC 187, the father wanted the Court to declare that the mother’s denial of parenting time constituted family violence. The Court refused. The Court noted that the father failed to provide any evidence of harm to the children.
* In ''[http://canlii.ca/t/g1rsc E. (J.R.) v. 07----8 B.C. Ltd.]'', 2013 BCSC 2038 the Court held that taking an insistent and even inflexible position in post-separation negotiations did not in that case equate to emotional or psychological abuse.

It should finally be cautioned that the courts take a dim view of family violence claims that have other motivations. In ''[http://canlii.ca/t/g2zjp L.S. v. G.S.]'', 2014 BCSC 187, the court said:
<blockquote>More important, there is no evidence that the children have suffered any physical or emotional harm as a result of the claimant’s conduct. The provisions in the ''FLA'' relating to family violence are intended to address a serious social issue and to protect children and spouses from actual harm or danger. Their meaning and application should not be stretched to the point they become just another weapon in a largely financial war between the parties.

==Using the ''Family Law Act'' for protection==
The ''[[Family Law Act]]'' offers a number of different restraining orders that can be very helpful and can provide the same level of protection as the criminal recognizance does.

===Protection orders under Part 9===

Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under s. 183(1), an ''at-risk family member'', someone on behalf of an at-risk family member, or the court itself can ask for a protection order, and the claim for a protection order needn't be made with any other claims under the act.

The act has a number of really important definitions that relate to protection orders. ''At-risk family member'' and ''family member'' are defined in ss. 182 and 1, respectively:

<blockquote><tt>"at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member</tt></blockquote>

<blockquote><tt>"family member", with respect to a person, means</tt></blockquote>
<blockquote><blockquote><tt>(a) the person's spouse or former spouse,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a person with whom the person is living, or has lived, in a marriage-like relationship,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a parent or guardian of the person's child,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) a person who lives with, and is related to,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the person, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) a person referred to in any of paragraphs (a) to (c), or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the person's child,</tt></blockquote></blockquote>
<blockquote><tt>and includes a child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e)</tt></blockquote>

If you read the definition of ''family member'' carefully, you'll see that people who are just dating or are in another casual relationship aren't "family members" as the act defines the term. This means that people who are just dating or are in another casual relationship can't apply for protection orders.

===Making protection orders===

When the court is asked to make a protection order, it must consider certain risk factors set out at s. 184(1):

<blockquote><tt>(a) any history of family violence by the family member against whom the order is to be made;</tt></blockquote>
<blockquote><tt>(b) whether any family violence is repetitive or escalating;</tt></blockquote>
<blockquote><tt>(c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;</tt></blockquote>
<blockquote><tt>(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;</tt></blockquote>
<blockquote><tt>(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;</tt></blockquote>
<blockquote><tt>(f) the at-risk family member's perception of risks to his or her own safety and security;</tt></blockquote>
<blockquote><tt>(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.</tt></blockquote>

Essentially, the court is required to look at the family violence in the overall context of the couple and the history and present circumstances of their relationship. When a child is a family member, under s. 185, the court must also consider:

#whether the child might be exposed to family violence if a protection order isn't made; and,
#whether a protection order should also be made for the protection of the child.

Recent court decisions like ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 show that a protection order will not be made without evidence that family violence will likely occur. ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 Even one act of physical violence may suggest that violence is ''likely'' to occur in the future. It is not enough for the person asking for a protection order to say that they are afraid or at risk of violence; evidence must be presented of one of the s. 184 risk factors to allow the court to decide if it should grant a protection order ''[http://canlii.ca/t/g7rnf Whitelock v. Whitelock]'', 2014 BCSC 1184.
===Protection order terms===

The available protection orders are listed at s. 183(3) and include orders:

*restraining a person from communicating with or contacting the at-risk family member, going to the at-risk family member's home, workplace or school, and stalking the at-risk family member,
*limiting how the person communicates with the at-risk family member,
*directing the police to remove the person from the family home or accompany him or her to remove personal property, and
*requiring the person to report to the court or to another person.

Under s. 183(3)(e), the court can impose any other terms in a protection order that may be necessary to protect the at-risk family member or implement the protection order. Protection orders remain in place for one year, unless the order specifies another term.

If a protection order, an order from another jurisdiction that is like a protection order, or a ''Criminal Code'' no-contact or no-communication order is made, any previous ''Family Law Act'' orders are suspended to the extent of any conflict with the protection order. In other words, if there's an older order for contact with the children, but a protection order is made that stops the person with contact from communicating with the children, the parts of the older order about contact would be suspended.

To find out more about protection orders, you may wish to read the booklet [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders], or read [http://www.clicklaw.bc.ca/resource/4101 How to Apply for a Family Law Protection Order].

===Changing protection orders===

When a protection order has been made and hasn't yet expired, either party can apply to vary the order to:

#extend or shorten the period of time that the order is in effect,
#vary the terms of the order, or
#end the order.

When a protection order has been made without notice, that is, if the application was made without letting the other party know about the application ahead of time, the other party can ask the court to cancel the order.

===Enforcing protection orders===

Protection orders can't be enforced under the ''Family Law Act'', only by s. 127 of the ''Criminal Code'', which makes it an offence to breach of a court order. However, s. 188(2) says this;

<blockquote><tt>A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may</tt></blockquote>
<blockquote><blockquote><tt>(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if necessary for the purpose of paragraph (a), use reasonable force.</tt></blockquote></blockquote>

==Family violence and the best interests of the child analysis==
Part 4, Division 1 of the ''Act'' (s. 37 and s. 38) deal with the factors that determine what's in the ''best interests of the child''. The issue of family violence must be considered in the context of any application to establish or change guardianship, parenting arrangements or contact with a child.

A finding of family violence can greatly impact a court's decision around parenting arrangements and how to allocate parental responsibilities in keeping with the best interests of a child. A court could decide the person responsible for family violence should have no parenting time, supervised parenting time, or no parenting time or responsibilities.

This said, there are cases where the court granted equal parenting even where one parent was responsible for family violence. It is simply impossible to predict what a court will consider to be in the best interests of a child in any particular case as the analysis is very fact specific.
According to s. 37 of the ''[[Family Law Act]]'', when undertaking the best interests analysis, a court must consider, among other things, the following:
* The impact of any family violence on the child’s safety, security or well-being.
* Whether the family violence is directed toward the child or another family member.
* Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs.
* The appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child.
* Any civil or criminal proceeding relevant to the child’s safety, security or well being.

Where specific facts are important, the evidence you produce is important. As such, if you are asking a court to make an order respecting guardianship, parenting arrangements or contact with a child and there has been family violence, or if you are defending such an application, it is important to focus evidence that addresses these factors.

==Conduct orders==
Conduct orders under Part 10, Division 5 of the ''[[Family Law Act]]'' give the court some control to help the parties and the court process. They are different from family law protection orders, and not as tailored to addressing family violence. A conduct order could, for example, stop a party from filing repetitive applications that misuse the court process, tell a party to attend a counselling program, or say how and when parties should communicate with eachother.

A conduct order may be seen as a less extreme way to reduce bad behaviour and hostilities compared to a family law protection order. While a conduct order may be less coercive, a court must consider whether it is enough. Under s. 255 a court will not issue a conduct order restricting communication if a family law protection order would be more appropriate. Likewise, a court will not decline to impose a family law protection order merely because a conduct order was previously in place.

A court can only make conduct orders for one of four purposes set out at s. 222:

<blockquote><tt>At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes:</tt></blockquote>
<blockquote><blockquote><tt>(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) to prevent misuse of the court process;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) to facilitate arrangements pending final determination of a family law dispute.</tt></blockquote></blockquote>

Conduct orders include orders:

*requiring a person to attend counselling, or a specified service or a program like an anti-violence or anger management course,
*restricting communication between the parties,
*requiring a person to pay the costs associated with the family home, like mortgage or rent payments, property taxes and utilities,
*restricting a person from terminating the utilities serving the family home,
*requiring a person to supervise the removal of personal property from the family home,
*requiring a person to post security to guarantee his or her good behaviour, and
*requiring a person to report to the court to another person, like a counsellor or therapist.

Conduct orders can be enforced in a number of ways under s. 228, including by requiring a person to pay up to $5,000 as a fine or to a party, or by jailing the person for up to 30 days. Jail will only be ordered when nothing else will secure the person's compliance with the conduct order.

==Other orders==

Other orders are available under the ''Family Law Act'' that could be used to address issues relating to family violence.

*'''Exclusive occupancy:''' Under s. 90, the court may give one party exclusive occupancy of the family home and the property in the family home. This isn't a restraining order, in the sense that it prohibits the other party from entering the home, but only the person with exclusive occupancy is allowed to live there.
*'''Supervised parenting time and contact:''' Under ss. 45 and 59, a person's parenting time or contact can be subject to a requirement that it be supervised by a third party, like a relative or a professional supervisor.
*'''Conditions of parenting time and contact:''' Under s. 218, the court may impose terms and conditions on any order it makes. Where family violence is an issue, appropriate terms and conditions might restrict where the children are exchanged, and how the parties interact when the children are exchanged, or they might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol.

==Resources and Links==
===Legislation===
*''[[Family Law Act]]''
* ''[http://canlii.ca/t/8mcr Supreme Court Family Rules]'', Rule 15-1(2)

===Forms===
* [[PCFR Form 25 Protection Order]]

===Links===
* [http://www.clicklaw.bc.ca/resource/4105 Protection Orders - Questions and Answers]
* [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders]
* [http://www.clicklaw.bc.ca/resource/4101 How to Apply for a Family Law Protection Order]

{{REVIEWED | reviewer = [[Gayle Raphanel]] and [[Samantha Simpson]], August 5, 2017}}

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[[Category:JP Boyd on Family Law]]

Family Violence in the Family Law Act and the Divorce Act

2017-08-13T16:56:02Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge
|ChapterEditors = [[Gayle Raphanel]] and [[Samantha Simpson]]
}}
{{Clicklawbadge
|resourcetype = critical resources and common questions on
|link = [http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence family violence issues]
}}

==Family violence under the ''Family Law Act''==
Family violence is dealt with under the ''[[Family Law Act]]'' when there are questions about:
* protecting an at-risk family member from another family member, and/or
* parenting arrangements and what is in the best interests of a child.

Part 9 of the ''Act'' deals with protection orders that can restrain a family member from communicating with, following or going near another family member, or from possessing weapons. These are discussed first.

Part 4, Division 1 of the ''Act'' deals with care of and time with children. Sections 37 and 38 say family violence as a very important factor when assessing the ''best interests of a child'' and making an agreement or order about care of and time with children.

===Definition of family violence===
The ''[[Family Law Act]]'' defines family violence in a broad and inclusive way to capture more than just forceful physical contact. Non-physical forms of abuse such as harassment, intimidation and even financial sabotage can qualify where these actions instill fear. No long-term intention to follow through with the act being threatened is required for it to be considered family violence.

Section 1 of the ''[[Family Law Act]]'' defines the term:

<blockquote><tt>"family violence" includes</tt></blockquote>
<blockquote><blockquote><tt>(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) sexual abuse of a family member,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) attempts to physically or sexually abuse a family member,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) psychological or emotional abuse of a family member, including</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) stalking or following of the family member, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iv) intentional damage to property, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) in the case of a child, direct or indirect exposure to family violence</tt></blockquote></blockquote>

So far, the courts have found a wide range of actions to be ''family violence''. The following are just some examples of family violence:
* In ''[http://canlii.ca/t/gx9s1 K.R. v. J.D.]'', 2017 BCSC 182, a parent's derogatory and demeaning comments about the other parent, on occasion in the child’s presence, “clearly amount to family violence” since they disturbed the child and caused the child emotional harm.
* In ''[http://canlii.ca/t/fxjb5 B. (M.W.) v. B. (A.R.)]'', 2013 BCSC 885, a mother was found to have committed family violence for repeatedly interfering with the father’s access to the children and refusing to settle orders that were drafted by lawyers and these actions prolonged and intensified the litigation.
* In ''[http://canlii.ca/t/gdt2h Hokhold v. Gerbrandt]'', 2014 BCSC 1875, the court determined that the father's emotionally abusive conduct which included sending excessive demanding emails, failing to pay support, and threatening to close his dental practice, constituted family violence.
* In ''[http://canlii.ca/t/gh679 R. (C.) v. (M.A.)]'', 2015 BCPC 76 the court found that a father’s threats to use his stronger financial position to fight the mother “[until] she lives in a box” constituted family violence.
* In ''[http://canlii.ca/t/g7233 R. (L.A.) v. R. (E.J.)]'', 2014 BCSC 966, the court found that disparaging remarks made to the children about their mother, as well as disparaging comments made to the mother in the children’s presence, constituted emotional abuse.
* ''[http://canlii.ca/t/glx9n F.(C.) v. V. (D)]'', 2015 BCPC 309, the court found that there had been family violence as the father broke the mother’s cellphone and a picture on the wall, then kicked a hole in the bathroom door.

A lot depends on the specific facts of the case, however. The following are some examples of where the court determined that there was no family violence:

* In ''[http://canlii.ca/t/g2zjp S. (L.) v. S. (G).]'', 2014 BCSC 187, the father wanted the court to declare that the mother’s denial of parenting time constituted family violence. The court refused. The court noted that the father failed to provide any evidence of harm to the children.
* In ''[http://canlii.ca/t/g1rsc E. (J.R.) v. 07----8 B.C. Ltd.]'', 2013 BCSC 2038 the court held that taking an insistent and even inflexible position in post-separation negotiations did not in that case equate to emotional or psychological abuse.

It should finally be cautioned that the courts take a dim view of family violence claims that have other motivations. In ''[http://canlii.ca/t/g2zjp L.S. v. G.S.]'', 2014 BCSC 187, the court said:
<blockquote>More important, there is no evidence that the children have suffered any physical or emotional harm as a result of the claimant’s conduct. The provisions in the ''FLA'' relating to family violence are intended to address a serious social issue and to protect children and spouses from actual harm or danger. Their meaning and application should not be stretched to the point they become just another weapon in a largely financial war between the parties.

==Using the ''Family Law Act'' for protection==
The ''[[Family Law Act]]'' offers a number of different restraining orders that can be very helpful and can provide the same level of protection as the criminal recognizance does.

===Protection orders under Part 9===

Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under s. 183(1), an ''at-risk family member'', someone on behalf of an at-risk family member, or the court itself can ask for a protection order, and the claim for a protection order needn't be made with any other claims under the act.

The act has a number of really important definitions that relate to protection orders. ''At-risk family member'' and ''family member'' are defined in ss. 182 and 1, respectively:

<blockquote><tt>"at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member</tt></blockquote>

<blockquote><tt>"family member", with respect to a person, means</tt></blockquote>
<blockquote><blockquote><tt>(a) the person's spouse or former spouse,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a person with whom the person is living, or has lived, in a marriage-like relationship,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a parent or guardian of the person's child,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) a person who lives with, and is related to,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the person, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) a person referred to in any of paragraphs (a) to (c), or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the person's child,</tt></blockquote></blockquote>
<blockquote><tt>and includes a child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e)</tt></blockquote>

If you read the definition of ''family member'' carefully, you'll see that people who are just dating or are in another casual relationship aren't family members as the ''Act'' defines the term. This means that people who are just dating or are in another casual relationship can't apply for protection orders under Part 9 of the ''Family Law Act''. (They can, however, apply for a peace bond under the ''Criminal Code''.)

===Making protection orders===

When the court is asked to make a protection order, it must consider certain risk factors set out at s. 184(1):

<blockquote><tt>(a) any history of family violence by the family member against whom the order is to be made;</tt></blockquote>
<blockquote><tt>(b) whether any family violence is repetitive or escalating;</tt></blockquote>
<blockquote><tt>(c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;</tt></blockquote>
<blockquote><tt>(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;</tt></blockquote>
<blockquote><tt>(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;</tt></blockquote>
<blockquote><tt>(f) the at-risk family member's perception of risks to his or her own safety and security;</tt></blockquote>
<blockquote><tt>(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.</tt></blockquote>

Essentially, the court is required to look at the family violence in the overall context of the couple and the history and present circumstances of their relationship. When a child is a family member, under s. 185, the court must also consider:

*whether the child might be exposed to family violence if a protection order isn't made; and,
*whether a protection order should also be made for the protection of the child.

Recent court decisions like ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 show that a protection order will not be made without evidence that family violence will likely occur. ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 Even one act of physical violence may suggest that violence is ''likely'' to occur in the future. It is not enough for the person asking for a protection order to say that they are afraid or at risk of violence; evidence must be presented of one of the s. 184 risk factors to allow the court to decide if it should grant a protection order ''[http://canlii.ca/t/g7rnf Whitelock v. Whitelock]'', 2014 BCSC 1184.

===Protection order terms===

The available protection orders are listed at s. 183(3) and include orders:

*restraining a person from communicating with or contacting the at-risk family member, going to the at-risk family member's home, workplace or school, and stalking the at-risk family member,
*limiting how the person communicates with the at-risk family member,
*directing the police to remove the person from the family home or accompany them to remove personal property, and
*requiring the person to report to the court or to another person.

Under s. 183(3)(e), the court can impose any other terms in a protection order that may be necessary to protect the at-risk family member or implement the protection order. Protection orders remain in place for one year, unless the order specifies another term.

If a protection order, an order from another jurisdiction that is like a protection order, or a ''Criminal Code'' no-contact or no-communication order is made, any previous ''Family Law Act'' orders are suspended to the extent of any conflict with the protection order. In other words, if there's an older order for contact with the children, but a protection order is made that stops the person with contact from communicating with the children, the parts of the older order about contact would be suspended.

To find out more about protection orders, you may wish to read the booklet [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders], or read [http://www.clicklaw.bc.ca/resource/4101 How to Apply for a Family Law Protection Order].

===Changing protection orders===

When a protection order has been made and hasn't yet expired, either party can apply to vary the order to:

*extend or shorten the period of time that the order is in effect,
*vary the terms of the order, or
*end the order.

When a protection order has been made without notice, that is, if the application was made without letting the other party know about the application ahead of time, the other party can ask the court to cancel the order.

===Enforcing protection orders===

Protection orders can't be enforced under the ''Family Law Act'', only by s. 127 of the ''Criminal Code'', which makes it an offence to breach of a court order. However, s. 188(2) says this;

<blockquote><tt>A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may</tt></blockquote>
<blockquote><blockquote><tt>(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if necessary for the purpose of paragraph (a), use reasonable force.</tt></blockquote></blockquote>

==Family violence and the best interests of the child analysis==
Part 4, Division 1 of the ''Act'' (s. 37 and s. 38) deal with the factors that determine what's in the ''best interests of the child''. The issue of family violence must be considered in the context of any application to establish or change guardianship, parenting arrangements or contact with a child.

A finding of family violence can greatly impact a court's decision around parenting arrangements and how to allocate parental responsibilities in keeping with the best interests of a child. A court could decide the person responsible for family violence should have no parenting time, supervised parenting time, or no parenting time or responsibilities.

This said, there are cases where the court granted equal parenting even where one parent was responsible for family violence. It is simply impossible to predict what a court will consider to be in the best interests of a child in any particular case as the analysis is very fact specific.
According to s. 37 of the ''[[Family Law Act]]'', when undertaking the best interests analysis, a court must consider, among other things, the following:
* the impact of any family violence on the child’s safety, security or well-being,
* whether the family violence is directed toward the child or another family member,
* whether the actions of a person responsible for family violence indicate that the person may be impaired in their ability to care for the child and meet the child’s needs,
* the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child,
* any civil or criminal proceeding relevant to the child’s safety, security or well being.

Where specific facts are important, the evidence you produce is important. As such, if you are asking a court to make an order respecting guardianship, parenting arrangements or contact with a child and there has been family violence, or if you are defending such an application, it is important to focus evidence that addresses these factors.

==Conduct orders==
Conduct orders under Part 10, Division 5 of the ''[[Family Law Act]]'' give the court some control to help the parties and the court process. They are different from family law protection orders, and not as tailored to addressing family violence. A conduct order could, for example, stop a party from filing repetitive applications that misuse the court process, tell a party to attend a counselling program, or say how and when parties should communicate with eachother.

A conduct order may be seen as a less extreme way to reduce bad behaviour and hostilities compared to a family law protection order. While a conduct order may be less coercive, a court must consider whether it is enough. Under s. 255 a court will not issue a conduct order restricting communication if a family law protection order would be more appropriate. Likewise, a court will not decline to impose a family law protection order merely because a conduct order was previously in place.

A court can only make conduct orders for one of four purposes set out at s. 222:

<blockquote><tt>At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes:</tt></blockquote>
<blockquote><blockquote><tt>(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) to prevent misuse of the court process;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) to facilitate arrangements pending final determination of a family law dispute.</tt></blockquote></blockquote>

Conduct orders include orders:

*requiring a person to attend counselling, or a specified service or a program like an anti-violence or anger management course,
*restricting communication between the parties,
*requiring a person to pay the costs associated with the family home, like mortgage or rent payments, property taxes and utilities,
*restricting a person from terminating the utilities serving the family home,
*requiring a person to supervise the removal of personal property from the family home,
*requiring a person to post security to guarantee their good behaviour, and
*requiring a person to report to the court to another person, like a counsellor or therapist.

Conduct orders can be enforced in a number of ways under s. 228, including by requiring a person to pay up to $5,000 as a fine or to a party, or by jailing the person for up to 30 days. Jail will only be ordered when nothing else will secure the person's compliance with the conduct order.

==Other orders==

Other orders are available under the ''Family Law Act'' that could be used to address issues relating to family violence.

*'''Exclusive occupancy:''' Under s. 90, the court may give one party exclusive occupancy of the family home and the property in the family home. This isn't a restraining order, in the sense that it prohibits the other party from entering the home, but only the person with exclusive occupancy is allowed to live there.
*'''Supervised parenting time and contact:''' Under ss. 45 and 59, a person's parenting time or contact can be subject to a requirement that it be supervised by a third party, like a relative or a professional supervisor.
*'''Conditions of parenting time and contact:''' Under s. 218, the court may impose terms and conditions on any order it makes. Where family violence is an issue, appropriate terms and conditions might restrict where the children are exchanged, and how the parties interact when the children are exchanged, or they might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol.

==Resources and Links==
===Legislation===
*''[[Family Law Act]]''
* ''[http://canlii.ca/t/8mcr Supreme Court Family Rules]'', Rule 15-1(2)

===Forms===
* [[PCFR Form 25 Protection Order]]

===Links===
* [http://www.clicklaw.bc.ca/resource/4105 Protection Orders - Questions and Answers]
* [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders]
* [http://www.clicklaw.bc.ca/resource/4101 How to Apply for a Family Law Protection Order]

{{REVIEWED | reviewer = [[Gayle Raphanel]] and [[Samantha Simpson]], August 5, 2017}}

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[[Category:JP Boyd on Family Law]]

Family Violence Overview

2017-08-13T16:39:22Z

Penny Goldsmith:

Family Violence Overview

2017-08-13T16:38:48Z

Penny Goldsmith:

Parenting Coordination

2017-08-03T00:44:28Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}

Parenting coordination is a child-focused dispute resolution process for separated families. Parenting coordination deals with parenting disputes arising after an agreement or order has been made about parental responsibilities, parenting time or contact. ''Parenting coordinators'' are experienced family law lawyers, mental health professionals (counsellors, social workers, family therapists, and psychologists), mediators and arbitrators.

This section provides a provides a brief introduction to parenting coordination, an overview of the process, and links to some additional resources on parenting coordination.

==Introduction==
Parents may have a separation agreement or court order that establishes a parenting plan. If that's the case but they are still fighting over the details, the parents may agree, or a court may order, that a parenting coordinator assist the parents to resolve their disputes instead of repeatedly getting the courts involved. Parenting coordination is a child-centered dispute resolution process aimed at high conflict personalities. As with all family dispute resolution professionals, the parenting coordinator will meet with the parties separately prior to starting the process to screen for the presence of family violence.

===What a parenting coordinator is===
A parenting coordinator has specialized training in family law, mediation, arbitration, communications skills development, high conflict family dynamics and child development. Parenting coordinators are members of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society] and governed by the Society as well as the [[Family Law Act]], and the ''[http://canlii.ca/t/8rdx Family Law Act Regulation]''.

===What a parenting coordinator does===
The parenting coordinator provides parties who cannot agree on aspects of parenting with a relatively quick and informal way to resolve their disputes. Regardless of how detailed a parenting plan or order may be, some parents will always find things to argue about and it is the children who pay the price for this kind of parental behavior. A parenting coordinator may be useful in minimizing that conflict by attempting to educate and coach the parents on how to manage conflict in a healthy way. If that doesn't work the parenting coordinator will mediate or, as a last resort, arbitrate the dispute between the parents. The long term goal of the parenting coordinator is to enable the parents to parent in a healthy and supportive way, without the need for a parenting coordinator or frequent applications to court. That goal may not be attainable for some parents.

Some examples of what a PC may do are:
*deciding extra curricular activities and how they will be paid
*deciding what school the child will attend
*determining if a child needs tutoring, therapy or medical treatment
*arranging parenting time for special events
*deciding how a child’s belongings should be distributed between his or her parents' homes
*deciding the specifics of parenting time if the agreement or order is more general (for example the agreement says the parents will share time approximately equally but doesn't say exactly how)

===What a parenting coordinator doesn't do===
A parenting coordinator does not:
*make original orders for Parenting Time
*make decisions changing custody or guardianship agreements or orders
*deal with property division, spousal support, or child support (with the possible exception of special expenses)
*deal with relocation

===How the parenting coordinator works===
The parenting coordinator is appointed by agreement or court order. An agreement or order appointing a parenting coordinator should specify who is being appointed; a list a of parenting coordinators is available at the website of [http://www.bcparentingcoordinators.com/member-roster/ BC Parenting Coordinators Roster Society].
Because the parenting coordinator role is relatively invasive in a family's life, some parenting coordinators invite parents to a short meeting to discuss the parenting coordinator's role prior to the formal appointment. This meeting might have a fixed cost or no cost.
Once the parents and the parenting coordinator agree, they will enter a [http://www.bcparentingcoordinators.com/assets/pdfs/BCPCRS_standard_pc_agreement_template_sept_2014.pdf Parenting Coordination Agreement] for which they should have independent legal advice. The parenting coordinator agreement sets out in some detail what the parenting coordinator will do, how it will be done, the cost and how it is to be paid. The agreement also provides for the term of the arrangement. It may be as short as 6 months but most parenting coordinators will require that the term be at least 12 to 24 months with an opportunity for the parents to renew the contract if the parenting coordinator remains willing. Most parenting coordinators will require a retainer and/or a deposit of $5,000 to $10,000 and up. The parents must each then pay their share of the parenting coordinator's retainer. As with a lawyer retainer, the parenting coordinator retainer is security for the parenting coordinator's future bills. When bills are issued, parenting coordinators pay themselves out of retainer.

Some parenting coordinators may ask for an additional retainer, called a deposit. This money is held in reserve to enable the parenting coordinator to finish dealing with a problem in the event that a party's retainer runs out in the middle of a dispute and the party refuses to replenish his or her retainer. Parenting coordinators charge by the hour for all time spent working with the family, so they are expensive. They can still be cheaper in the long run than paying lawyers for numerous applications to court, but they may nonetheless be more expensive than families can afford.

Depending on the circumstances and the age of the children, the parents may also be asked to sign a number of consent forms giving the children's doctors, care providers, teachers, therapists and any other relevant people, permission to discuss the family with the parenting coordinator.
After the Agreement has been signed and the retainer paid, the parents usually have some issues which have accumulated and the parenting coordinators will then meet with the parties, usually in person and usually together, at least for the first meeting. The PC may also meet with the children and any other people, such as teachers, therapists or doctors who may be helpful.
The parenting coordinator will attempt to educate, coach, mediate, and as a last resort, arbitrate, the resolution of the issue. As other issues develop, the same process applies. Some issues may be resolved relatively quickly by phone or email, other issues will require in person meetings.
Either or both parents may bring an issue to the parenting coordinator for resolution. Although the parenting coordinator has no power to force anyone to do anything, it is worth noting decisions of parenting coordinators may be enforceable by the Court. Parents who fail to meet their obligations under the parenting coordinator agreement or fail to attend meetings arranged by the parenting coordinator may be penalized in costs and their lack of cooperation may be reported by the parenting coordinator to the Court.

===Enforcing a determination===

Parenting coordinators' determinations may be enforced by filing them in court, either under Rule 12 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] or Rule 2-1.1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules].

===Concluding the retainer===

At the end of the parenting coordinator's term, all parties — the parents and the parenting coordinator — must agree in order to renew the parenting coordination agreement. If the agreement isn't renewed, the parenting coordination process is concluded.

Under s. 15(6) of the ''Family Law Act'', a parenting coordination agreement can be terminated before the end of a parenting coordinator's term in one of three circumstances:

<blockquote><tt>(a) in the case of an agreement, by agreement of the parties or by an order made on application by either of the parties;</tt></blockquote>
<blockquote><tt>(b) in the case of an order, by an order made on application by either of the parties;</tt></blockquote>
<blockquote><tt>(c) in any case, by the parenting coordinator, on giving notice to the parties and, if the parenting coordinator is acting under an order, to the court.</tt></blockquote>

==Resources and links ==

===Legislation===

* ''[[Family Law Act]]''
* [http://canlii.ca/t/8rdx Family Law Act Regulation]
* ''[http://canlii.ca/t/84gc Arbitration Act]''
* [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]

===Links===

* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://www.afccnet.org/ Association of Family and Conciliation Courts]
* [http://www.afccnet.org/Portals/0/AFCCGuidelinesforParentingcoordinationnew.pdf AFCC's Guidelines for Parenting Coordination] (PDF)



{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016}}

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Parenting Coordination

2017-08-03T00:44:05Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}

Parenting coordination is a child-focused dispute resolution process for separated families. Parenting coordination deals with parenting disputes arising after an agreement or order has been made about parental responsibilities, parenting time or contact. ''Parenting coordinators'' are experienced family law lawyers, mental health professionals (counsellors, social workers, family therapists, and psychologists), mediators and arbitrators.

This section provides a provides a brief introduction to parenting coordination, an overview of the process, and links to some additional resources on parenting coordination.

==Introduction==
Parents may have a separation agreement or court order that establishes a parenting plan. If that's the case but they are still fighting over the details, the parents may agree, or a court may order, that a parenting coordinator assist the parents to resolve their disputes instead of repeatedly getting the courts involved. Parenting coordination is a child-centered dispute resolution process aimed at high conflict personalities. As with all family dispute resolution professionals, the parenting coordinator will meet with the parties separately prior to starting the process to screen for the presence of family violence.

===What a parenting coordinator (PC) is===
A parenting coordinator has specialized training in family law, mediation, arbitration, communications skills development, high conflict family dynamics and child development. Parenting coordinators are members of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society] and governed by the Society as well as the [[Family Law Act]], and the ''[http://canlii.ca/t/8rdx Family Law Act Regulation]''.

===What a parenting coordinator does===
The parenting coordinator provides parties who cannot agree on aspects of parenting with a relatively quick and informal way to resolve their disputes. Regardless of how detailed a parenting plan or order may be, some parents will always find things to argue about and it is the children who pay the price for this kind of parental behavior. A parenting coordinator may be useful in minimizing that conflict by attempting to educate and coach the parents on how to manage conflict in a healthy way. If that doesn't work the parenting coordinator will mediate or, as a last resort, arbitrate the dispute between the parents. The long term goal of the parenting coordinator is to enable the parents to parent in a healthy and supportive way, without the need for a parenting coordinator or frequent applications to court. That goal may not be attainable for some parents.

Some examples of what a PC may do are:
*deciding extra curricular activities and how they will be paid
*deciding what school the child will attend
*determining if a child needs tutoring, therapy or medical treatment
*arranging parenting time for special events
*deciding how a child’s belongings should be distributed between their parents' homes
*deciding the specifics of parenting time if the agreement or order is more general (for example the agreement says the parents will share time approximately equally but doesn't say exactly how)

===What a parenting coordinator doesn't do===
A parenting coordinator does not:
*make original orders for parenting time
*make decisions changing custody or guardianship agreements or orders
*deal with property division, spousal support, or child support (with the possible exception of special expenses)
*deal with relocation

===How the parenting coordinator works===
The parenting coordinator is appointed by agreement or court order. An agreement or order appointing a parenting coordinator should specify who is being appointed; a list a of parenting coordinators is available at the website of [http://www.bcparentingcoordinators.com/member-roster/ BC Parenting Coordinators Roster Society].
Because the parenting coordinator role is relatively invasive in a family's life, some parenting coordinators invite parents to a short meeting to discuss the parenting coordinator's role prior to the formal appointment. This meeting might have a fixed cost or no cost.

Once the parents and the parenting coordinator agree, they will enter a [http://www.bcparentingcoordinators.com/assets/pdfs/BCPCRS_standard_pc_agreement_template_sept_2014.pdf Parenting Coordination Agreement] for which they should have independent legal advice. The parenting coordinator agreement sets out in some detail what the parenting coordinator will do, how it will be done, the cost and how it is to be paid. The agreement also provides for the term of the arrangement. It may be as short as six months but most parenting coordinators will require that the term be at least 12 to 24 months with an opportunity for the parents to renew the contract if the parenting coordinator remains willing. Most parenting coordinators will require a retainer and/or a deposit of $5,000 to $10,000 and up. The parents must each then pay their share of the parenting coordinator's retainer. As with a lawyer retainer, the parenting coordinator retainer is security for the parenting coordinator's future bills. When bills are issued, parenting coordinators pay themselves out of retainer.

Some parenting coordinators may ask for an additional retainer, called a deposit. This money is held in reserve to enable the parenting coordinator to finish dealing with a problem in the event that a party's retainer runs out in the middle of a dispute and the party refuses to replenish their retainer. Parenting coordinators charge by the hour for all time spent working with the family, so they are expensive. They can still be cheaper in the long run than paying lawyers for numerous applications to court, but they may nonetheless be more expensive than families can afford.

Depending on the circumstances and the age of the children, the parents may also be asked to sign a number of consent forms giving the children's doctors, care providers, teachers, therapists and any other relevant people, permission to discuss the family with the parenting coordinator.

After the Agreement has been signed and the retainer paid, the parents usually have some issues which have accumulated and the parenting coordinators will then meet with the parties, usually in person and usually together, at least for the first meeting. The PC may also meet with the children and any other people, such as teachers, therapists or doctors who may be helpful.

The parenting coordinator will attempt to educate, coach, mediate, and as a last resort, arbitrate, the resolution of the issue. As other issues develop, the same process applies. Some issues may be resolved relatively quickly by phone or email, other issues will require in person meetings.

Either or both parents may bring an issue to the parenting coordinator for resolution. Although the parenting coordinator has no power to force anyone to do anything, it is worth noting decisions of parenting coordinators may be enforceable by the Court. Parents who fail to meet their obligations under the parenting coordinator agreement or fail to attend meetings arranged by the parenting coordinator may be penalized in costs and their lack of cooperation may be reported by the parenting coordinator to the Court.

===Enforcing a determination===

Parenting coordinators' determinations may be enforced by filing them in court, either under Rule 12 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] or Rule 2-1.1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules].

===Concluding the retainer===

At the end of the parenting coordinator's term, all parties — the parents and the parenting coordinator — must agree in order to renew the parenting coordination agreement. If the agreement isn't renewed, the parenting coordination process is concluded.

Under s. 15(6) of the ''Family Law Act'', a parenting coordination agreement can be terminated before the end of a parenting coordinator's term in one of three circumstances:

<blockquote><tt>(a) in the case of an agreement, by agreement of the parties or by an order made on application by either of the parties;</tt></blockquote>
<blockquote><tt>(b) in the case of an order, by an order made on application by either of the parties;</tt></blockquote>
<blockquote><tt>(c) in any case, by the parenting coordinator, on giving notice to the parties and, if the parenting coordinator is acting under an order, to the court.</tt></blockquote>

==Resources and links ==

===Legislation===

* ''[[Family Law Act]]''
* [http://canlii.ca/t/8rdx Family Law Act Regulation]
* ''[http://canlii.ca/t/84gc Arbitration Act]''
* [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]

===Links===

* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://www.afccnet.org/ Association of Family and Conciliation Courts]
* [http://www.afccnet.org/Portals/0/AFCCGuidelinesforParentingcoordinationnew.pdf AFCC's Guidelines for Parenting Coordination] (PDF)



{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016}}

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[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2017-08-03T00:37:17Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}

Arbitration is a dispute resolution process in which the parties hire a neutral third party, a family law arbitrator, to make a decision resolving their dispute that they agree they will be bound by. While the job of a mediator is to help two people work towards a solution that they make for themselves, the arbitrator's job is to act like a judge and impose a resolution, after hearing the evidence and listening to the arguments of each party.

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Arbitration in British Columbia==

Arbitration has rarely used been in family law matters in British Columbia, probably because most lawyers figured that if they have to have somebody impose a decision in a case, it might as well be a judge. In British Columbia, arbitration was most often used in a labour law context; in other regions, such as Ontario, the arbitration of family law disputes is commonplace. The new ''[[Family Law Act]]'', however, makes a number of changes to the provincial law that improve the usefulness of arbitration in family law disputes.

Arbitration has a number of advantages as a way of resolving family law problems:

#it allows a couple to hand-pick the particular person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who has a special expertise in, for example, the care of children, tax problems, or property issues,
#it allows the couple to pick the particular rules that will apply to the hearing and decision-making process,
#the arbitration process is private and closed to the public, and
#the result of the process is an award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to arrange a date for an arbitration than for a court hearing. Although short trials of two or three days can be booked within six or eight months, it can take a year or longer to get a date for longer trials because the court is so busy. An arbitration can be booked as soon as everyone has the free time in their calendars.

===The arbitration process===

When a couple agrees to arbitrate their dispute — you can't force someone into arbitration, it has to be voluntary — they first pick their arbitrator and then meet with the arbitrator to discuss the process leading to the arbitration hearing and pick their rules. Most of the time, the rules that people select are the more important parts of the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules] relating to evidence, experts, and procedure at trial.

Next, the parties will exchange the documents and information that are relevant to their dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips and paystubs might be exchanged.

If the parties cannot agree on how a child should be cared for, they might hire a psychologist to prepare a report on the parenting arrangements that will work best for the child, called a ''needs of the child assessment'', or they might hire a third-party lawyer or a social worker to talk to the child and prepare a ''views of the child report''. The nature of the documents that are important and the extent of the disclosure that is required will change, depending on the circumstances and how the parties decide to approach their dispute. There's more information about needs of the child assessments and views of the child reports in the introduction section of the [[Children_in_Family_Law_Matters|Children]] chapter.

Once the documents have been exchanged and any reports have been prepared, the parties will attend one or more hearings with their arbitrator. These hearings take place in the arbitrator's office and are usually less formal than court hearings; there can be as much flexibility to the arbitration process as the parties and the arbitrator will agree to.

At these hearings, each party presents their evidence, which may include witnesses who give testimony or may be limited to documents and affidavits. Each party then makes arguments to show the arbitrator why he or she should make a particular decision.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence, resolving all of the issues, and explaining why the arbitrator resolved the issues in the way he or she resolved them.

===The ''Arbitration Act''===

The arbitration of family law disputes in British Columbia is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', formerly known as the ''Commercial Arbitration Act''. The highlights of the act are these:

<blockquote>'''Section 1:''' An ''arbitrator'' is defined as a person who resolves a dispute referred to him or her by the parties. An ''arbitration agreement'' is an agreement between two or more persons to have their dispute resolved by arbitration.</blockquote>
<blockquote>'''Section 2:''' The act applies to commercial arbitration agreements and "any other arbitration agreement," such as family law arbitration agreements. When making decisions about children, the arbitrator must consider only the best interests of the children.</blockquote>
<blockquote>'''Section 9:''' An arbitrator can make interim awards on any subject at issue, such as interim awards regarding the care of children, child support, and spousal support.</blockquote>
<blockquote>'''Section 14:''' The final decision of an arbitrator is binding on the parties, subject to the reversal of the arbitrator's decision if the process or decision is procedurally defective, under s. 30, or if the decision is appealed to the court, under s. 31.</blockquote>
<blockquote>'''Section 23:''' "An arbitrator must adjudicate the matter before the arbitrator by reference to law unless the parties, as a term of an agreement referred to in s. 35, agree that the matter in dispute may be decided on equitable grounds, grounds of conscience or some other basis." Awards that are inconsistent with the ''Family Law Act'' are not enforceable.</blockquote>
<blockquote>'''Section 29:''' Awards in family law disputes can be enforced without leave of the court.</blockquote>
<blockquote>'''Section 30:''' The court can vary an award for the same reasons that it can vary a court order.</blockquote>
<blockquote>'''Section 31:''' Awards in family law disputes can be appealed.</blockquote>

===Faith-based arbitration===

Under the ''Arbitration Act'', the parties can choose their own rules to govern the arbitration process. Nothing in the act says that those rules cannot be religious rules. Judaism and Islam each have religious laws that can apply to family law issues for members of those faiths. Members of the orthodox Jewish community may use the Beth Din to settle personal disputes. Muslims can use Sharia law to the same end.

Whatever rules a couple chooses, however, the result of the arbitration process must not be contrary to the laws of British Columbia. Section 23(2) says this:

<blockquote><tt>Despite any agreement of the parties to a family law dispute, a provision of an award that is inconsistent with the ''Family Law Act'' is not enforceable.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and the amount that person pays cannot be too different from what the [[Child Support Guidelines]] require.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still begin a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

===Parenting coordination===

The ''Arbitration Act'' also applies to parenting coordination. In this dispute resolution process, the arbitrator, called a ''parenting coordinator'', tries to first settle a parenting dispute through a settlement process like mediation. If the parents cannot find consensus, the parenting coordinator acts sort of like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these dispute comes from the arbitration agreement the parents will sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are contrary to the law in British Columbia, including the federal ''[[Divorce Act]]'' or the provincial ''[[Family Law Act]]''. The court will not uphold determinations that are contrary to the law in this province.

Parenting coordinators are also restricted in the scope of the things they can make decisions about. Under s. 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator cannot make decisions about:

*subjects that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] in this chapter.

==When to use arbitration==

Only a few circumstances make arbitration a necessary choice over mediation, collaborative settlement processes, or court. Typically, a couple will choose arbitration if:

*they wish the laws of their religion or another set of principles to apply to the proceedings,
*their positions are too far apart to make negotiation or mediation a reasonable choice and must have a decision made for them, but don't want to go to the expense, anxiety and acrimony typically involved in litigation,
*they want to resolve their dispute discreetly and privately, and don't want to risk things being made public,
*the issues are complex and require a decision-maker who is a specialist in the area, or
*they want their dispute resolved more quickly than the court schedule will allow.

==How to find a family law arbitrator==

This is the hard part about arbitrating family law disputes, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to contact organizations that specialize in training or setting practice standards for family law arbitrators, such as:

*The Family Law Arbitrators Society
*[http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
*[https://bcami.com/ The BC Arbitration & Mediation Institute]

As an alternative, you could try calling a family law lawyer or two and asking if he or she knows and could recommend anyone who arbitrates family law disputes. Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they will be able to give you some names.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/84gc Arbitration Act]''
* ''[[Divorce Act]]''
* ''[[Family Law Act]]''
* [http://canlii.ca/t/8rdx Family Law Act Regulation]
* [[Child Support Guidelines]]

===Links===

* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [https://bcami.com/ The BC Arbitration & Mediation Institute]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 CBABC Lawyer Referral Service].
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Family Law Arbitration

2017-08-03T00:36:58Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}

Arbitration is a dispute resolution process in which the parties hire a neutral third party, a family law arbitrator, to make a decision resolving their dispute that they agree they will be bound by. While the job of a mediator is to help two people work towards a solution that they make for themselves, the arbitrator's job is to act like a judge and impose a resolution, after hearing the evidence and listening to the arguments of each party.

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

==Arbitration in British Columbia==

Arbitration has rarely been used in family law matters in British Columbia, probably because most lawyers figured that if they have to have somebody impose a decision in a case, it might as well be a judge. In British Columbia, arbitration was most often used in a labour law context; in other regions, such as Ontario, the arbitration of family law disputes is commonplace. The new ''[[Family Law Act]]'', however, makes a number of changes to the provincial law that improve the usefulness of arbitration in family law disputes.

Arbitration has a number of advantages as a way of resolving family law problems:

*it allows a couple to hand-pick the particular person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who has a special expertise in, for example, the care of children, tax problems, or property issues,
*it allows the couple to pick the particular rules that will apply to the hearing and decision-making process,
*the arbitration process is private and closed to the public, and
*the result of the process is an award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to arrange a date for an arbitration than for a court hearing. Although short trials of two or three days can be booked within six or eight months, it can take a year or longer to get a date for longer trials because the court is so busy. An arbitration can be booked as soon as everyone has the free time in their calendars.

===The arbitration process===

When a couple agrees to arbitrate their dispute, they first pick their arbitrator and then meet with the arbitrator to discuss the process leading to the arbitration hearing and pick their rules. You can't force someone into arbitration; it has to be voluntary. Most of the time, the rules that people select are the more important parts of the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules] relating to evidence, experts, and procedure at trial.

Next, the parties will exchange the documents and information that are relevant to their dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips and paystubs might be exchanged.

If the parties cannot agree on how a child should be cared for, they might hire a psychologist to prepare a report on the parenting arrangements that will work best for the child, called a ''needs of the child assessment'', or they might hire a third-party lawyer or a social worker to talk to the child and prepare a ''views of the child report''. The nature of the documents that are important and the extent of the disclosure that is required will change, depending on the circumstances and how the parties decide to approach their dispute. There's more information about needs of the child assessments and views of the child reports in the introduction section of the [[Children_in_Family_Law_Matters|Children]] chapter.

Once the documents have been exchanged and any reports have been prepared, the parties will attend one or more hearings with their arbitrator. These hearings take place in the arbitrator's office and are usually less formal than court hearings; there can be as much flexibility to the arbitration process as the parties and the arbitrator will agree to.

At these hearings, each party presents their evidence, which may include witnesses who give testimony or may be limited to documents and affidavits. Each party then makes arguments to show the arbitrator why they should make a particular decision.

After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence, resolving all of the issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

===The ''Arbitration Act''===

The arbitration of family law disputes in British Columbia is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', formerly known as the ''Commercial Arbitration Act''. The highlights of the ''Act'' are these:

<blockquote>'''Section 1:''' An ''arbitrator'' is defined as a person who resolves a dispute referred to him or her by the parties. An ''arbitration agreement'' is an agreement between two or more persons to have their dispute resolved by arbitration.</blockquote>
<blockquote>'''Section 2:''' The act applies to commercial arbitration agreements and "any other arbitration agreement," such as family law arbitration agreements. When making decisions about children, the arbitrator must consider only the best interests of the children.</blockquote>
<blockquote>'''Section 9:''' An arbitrator can make interim awards on any subject at issue, such as interim awards regarding the care of children, child support, and spousal support.</blockquote>
<blockquote>'''Section 14:''' The final decision of an arbitrator is binding on the parties, subject to the reversal of the arbitrator's decision if the process or decision is procedurally defective, under s. 30, or if the decision is appealed to the court, under s. 31.</blockquote>
<blockquote>'''Section 23:''' "An arbitrator must adjudicate the matter before the arbitrator by reference to law unless the parties, as a term of an agreement referred to in s. 35, agree that the matter in dispute may be decided on equitable grounds, grounds of conscience or some other basis." Awards that are inconsistent with the ''Family Law Act'' are not enforceable.</blockquote>
<blockquote>'''Section 29:''' Awards in family law disputes can be enforced without leave of the court.</blockquote>
<blockquote>'''Section 30:''' The court can vary an award for the same reasons that it can vary a court order.</blockquote>
<blockquote>'''Section 31:''' Awards in family law disputes can be appealed.</blockquote>

===Faith-based arbitration===

Under the ''Arbitration Act'', the parties can choose their own rules to govern the arbitration process. Nothing in the ''Act'' says that those rules cannot be religious rules. Judaism and Islam each have religious laws that can apply to family law issues for members of those faiths. Members of the orthodox Jewish community may use the Beth Din to settle personal disputes. Muslims can use Sharia law to the same end.

Whatever rules a couple chooses, however, the result of the arbitration process must not be contrary to the laws of British Columbia. Section 23(2) says this:

<blockquote><tt>Despite any agreement of the parties to a family law dispute, a provision of an award that is inconsistent with the ''Family Law Act'' is not enforceable.</tt></blockquote>

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and the amount that person pays cannot be too different from what the [[Child Support Guidelines]] require.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still begin a court proceeding in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

===Parenting coordination===

The ''Arbitration Act'' also applies to parenting coordination. In this dispute resolution process, the arbitrator, called a ''parenting coordinator'', tries to first settle a parenting dispute through a settlement process like mediation. If the parents cannot find consensus, the parenting coordinator acts sort of like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these dispute comes from the arbitration agreement the parents will sign, in this case called a ''parenting coordination agreement''.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are contrary to the law in British Columbia, including the federal ''[[Divorce Act]]'' or the provincial ''[[Family Law Act]]''. The court will not uphold determinations that are contrary to the law in this province.

Parenting coordinators are also restricted in the scope of the things they can make decisions about. Under s. 6(3) and (4)(a)(ix) of the [http://canlii.ca/t/8rdx Family Law Act Regulation], parenting coordinators can make determinations about parenting arrangements, contact with a child, and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator cannot make decisions about:

*subjects that are excluded by an order or a parenting coordination agreement,
*changes to the guardianship of a child,
*changes to the allocation of parental responsibilities,
*giving parenting time or contact to a person who does not have parenting time or contact,
*substantial changes to parenting time or contact, or
*the relocation of a child.

There's a lot more information about parenting coordination in the [[Parenting_Coordination|next section]] in this chapter.

==When to use arbitration==

Only a few circumstances make arbitration a necessary choice over mediation, collaborative settlement processes, or court. Typically, a couple will choose arbitration if:

*they wish the laws of their religion or another set of principles to apply to the proceedings,
*their positions are too far apart to make negotiation or mediation a reasonable choice and must have a decision made for them, but don't want to go to the expense, anxiety and acrimony typically involved in litigation,
*they want to resolve their dispute discreetly and privately, and don't want to risk things being made public,
*the issues are complex and require a decision-maker who is a specialist in the area, or
*they want their dispute resolved more quickly than the court schedule will allow.

==How to find a family law arbitrator==

This is the hard part about arbitrating family law disputes, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to contact organizations that specialize in training or setting practice standards for family law arbitrators, such as:

*The Family Law Arbitrators Society
*[http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
*[https://bcami.com/ The BC Arbitration & Mediation Institute]

As an alternative, you could try calling a family law lawyer or two and asking if they know and could recommend anyone who arbitrates family law disputes. Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they will be able to give you some names.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/84gc Arbitration Act]''
* ''[[Divorce Act]]''
* ''[[Family Law Act]]''
* [http://canlii.ca/t/8rdx Family Law Act Regulation]
* [[Child Support Guidelines]]

===Links===

* [http://www.labour-arbitrators.ca The Arbitrators Association of British Columbia]
* [https://bcami.com/ The BC Arbitration & Mediation Institute]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 CBABC Lawyer Referral Service].
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Law Mediation

2017-08-03T00:28:34Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
{{Clicklawbadge
| resourcetype = an answer to the question
| link = "[http://www.clicklaw.bc.ca/question/commonquestion/1121 What can mediation help me with?]"
}}{{LSSbadge
|resourcetype = more information about
|link = [http://www.familylaw.lss.bc.ca/help/who_Mediators.php Mediators]
}}Mediation is a process in which the two sides of a dispute work with a neutral third party, a mediator, to reach an agreement that deals with all or some of the issues in dispute. Mediation is not couples counselling; it is a legal process intended to help resolve a dispute without going to court. Mediators are usually trained professionals, and lawyers who are family law mediators are specially accredited by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides a brief overview of mediation, a description of the mediation process, some tips for making the most of mediation, and an introduction to the mediation services offered through the provincial government.

==Introduction==

At its heart, mediation is a cooperative, managed process of negotiation. Both parties must be willing to work together and each must be prepared to give a little and take a little. Because the mediation process is based on a cooperative effort to achieve a common goal, a settlement of the legal issues, there is usually a lot less of the bitterness and acrimony that can accompany litigation. Mediation is also much, much cheaper than litigation.

A couple can start mediation as an alternative to court or as a settlement process after a court proceeding has started. The result of a successful process of mediation is usually a separation agreement. If litigation has started, a settlement can be recorded as either a ''separation agreement'' or as an order that the parties agree the court will make, called a ''consent order''. If a couple are married, a consent order may make sense since they'll require an order for their divorce anyway.

Normally, just the people involved in the dispute attend mediation with their mediator, but they can bring their lawyers along as as well. The mediator's job is to facilitate the parties' negotiations, to provide a neutral third-party perspective, and to help ensure that any settlement is reasonably fair to all concerned, including the children of the relationship. As a mediator myself, I often appreciate having the lawyers present; it makes my job easier if I can rely on the lawyers to explain the law or to point out why a particular position is ill-advised.

The mediator has no stake in how the mediation turns out, and should have no bias in favour of either party and no special connection with either party. The mediator's position as a neutral third party is probably the mediator's most important role. It allows the mediator to be absolutely frank with each of the parties, and to point out when a party's expectations for an issue are unrealistic. Someone involved in mediation is a lot more likely to accept that his or her position is unreasonable when a mediator says so, rather than the other party.

==The mediation process==

The first step is for each party to hire a lawyer. Even if you don't intend on hiring the lawyer for the whole mediation process or have the lawyer present at the mediation, it can be critical to meet with a lawyer before the process begins to get some proper legal advice about the law that applies to your situation, and a sense of the general range of likely outcomes and the options available to you.

If you plan on retaining the lawyer for the mediation process, the lawyer will have the names of three or four mediators with whom he or she prefers to work. [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC], formerly the BC Mediation Roster Society, maintains a list of many, but not all, of the people who are trained as mediators in this province. Their website can help you find a mediator and offers more information about the mediation process. Many family law lawyers, who may or may not be members of Mediate BC, are also accredited family law mediators; lawyers who work as mediators will usually say so in their advertising.

===Getting organized===

The mediator will usually meet with the parties separately before the actual mediation begins. This is because mediators, like arbitrators, parent coordinators, and other Family Dispute Resolution Professionals, now have a positive duty to screen parties to determine if family violence is present and if it is, to ensure that the mediation process is safe for all concerned. Mediators also need to refer the victim of family violence to whatever resources may be available.

In addition to screening for family violence, the pre-mediation meeting also gives the mediator a chance to get to know the parties a bit, and for the parties to discuss with the mediator any concerns or questions they might have.

Next, the parties and the mediator will agree to a schedule of meetings, the ground rules for these meetings, and the objects or goals of the process. Sometimes the decisions as to ground rules and goals are left to the parties themselves; it is their process, after all, not that of the mediator. If the parties are using lawyers, this step may be left out since ground rules aren't required or because the lawyers will be able to agree on the ground rules between themselves. Whether there are multiple meetings or not depends largely on the parties and the number of issues outstanding. Often a single half- or full-day meeting will produce a settlement.

===Exchanging information===
{{LSSbadge
|resourcetype = guides on preparing Financial Statements
|link = [http://www.familylaw.lss.bc.ca/guides/mini/howtofillfinanstate_sc.php for Supreme Court] and [http://www.familylaw.lss.bc.ca/guides/mini/howToFillFinanState_PC.php Provincial Court]
}}The parties will then begin to assemble the documents required to explain their separate financial situations. Often this will consist only of completing a financial statement. A financial statement is a useful court form that sets out each party's income and expenses, and assets and debts.

Supporting documents will have to be gathered as well, which will usually consist of things like:

#income tax returns,
#paystubs or other proof of income,
#property assessments or appraisals, and,
#corporate financial statements and tax returns.

It is critical that both parties are honest and forthcoming about their finances; nothing will damage the mediation process more than the discovery that someone is hiding information or acting in bad faith.

These documents will then be exchanged between the parties in preparation for the first mediation session. Based on the documents disclosed and the issues on the table, additional documentation may be required to be produced and exchanged. A party who is self-employed may have to produce corporate financial statements and corporate tax returns in addition to the usual materials. The extent of any additional materials will depend entirely on the circumstances of each couple and their children.

As well, the parties may need further additional input and information from people such as child psychologists, accountants, and the like. If these people are needed to help settle matters, there may be an additional waiting period while these experts conduct their investigations and prepare their reports.

===Exchanging briefs===

Where the parties are represented by lawyers, the mediator may ask the lawyers to prepare ''mediation briefs''. Mediation briefs are summaries of the parties' relationship and each party's position and, when a position is legally complex or technical, an explanation of the law or facts supporting that position. The lawyers will give copies of their briefs to each other and to the mediator ahead of the first mediation session.

===Mediating the dispute===

Once all the information, reports, and briefs have been gathered and exchanged, and everybody has had a chance to digest everything, the parties, the lawyers and the mediator will meet at one or more mediation sessions. The mediator will first welcome everyone to the table, and ask the parties to sign a mediation agreement before anything else happens. The mediation agreement sets out the terms of the mediation sessions, requires the parties not to use the discussions held during mediation in any litigation, and describes the terms on which the mediator will be paid.

After the mediation agreement has been signed, each mediator will have his or her own preferred way of doing things. Most will ask someone to provide a general overview of the relationship and describe what exactly is at issue. Each party will have the opportunity to state their position on things. If lawyers are being used, they will inevitably do most of the talking, but the parties themselves will have ample opportunity to speak their minds... and you really should, it's your dispute!

Once this initial exchange of positions is complete, the mediator may keep everyone in the same room or may split the parties into separate rooms. If the parties are kept together, the mediator will press on and work on the problem, issue by issue. The mediator will keep some control over how the discussion flows, tamp the emotions down when things get heated, and keep everyone focused on their interests and the law rather than their emotions and the grievances of the past. If the parties are split into separate rooms, the mediator will alternate working with each party and will shuttle between each of the rooms. You may hear people describe this style of mediation as ''shuttle mediation''.

Assuming the mediation process is successful, the mediator will often prepare a list describing how each issue has been resolved, called ''minutes of settlement''. The minutes are usually rather informal and are meant to record the bare bones of the settlement in the expectation that a more complete document, like a separation agreement or a consent order, will be prepared in the future. The parties and sometimes their lawyers will be asked to sign the minutes to acknowledge the settlement that was reached.

===Formalizing the settlement===

The final stage involves the putting the terms of the agreement into more formal language in a legal document that both parties, or, depending on the type of document, their lawyers will sign. Typically, a settlement will be recorded as a separation agreement or, if there is an existing court proceeding or the parties need to get divorced, an order that the parties agree the court should make.

If a party changes his or her mind before the separation agreement or consent order is filed, the minutes of settlement can be enforced in court as evidence of the deal reached between the parties. In fact, in certain circumstances the mediator's notes alone may stand as proof of the parties' agreement. As long as it is plain what has been agreed to and that the intentions of the parties were finally settled, the minutes or the mediator's notes can be used as evidence of a binding agreement.

Note that if you are relying on a mediated settlement in court, it is important that the settlement be conclusive and leaving nothing else for further negotiation or confirmation. In the 2005 British Columbia Supreme Court case of ''[http://canlii.ca/t/1q34b S.A.A. v. P.W.J.A.]'', 2005 BCSC 603, the court held that the parties couldn't rely on an agreement that was "subject to confirmation" as a final, binding agreement. In that case, the agreement was subject to the wife producing financial information which, when produced, did not confirm the information provided at mediation.

==Tips for successful mediation==

In mediation, as in all other forms of negotiation, the goal is to produce a fair agreement in an efficient and cooperative way. There are lots of things you can do that will hinder this process, and other things you can do that will help. The following are a few tips on how to make mediation work for you.

Remember that the more you argue about a particular position of yours, the more you wind up being stuck with that position. Many people find that after they've argued a particular point to death, they're stuck with it because they can't back down without losing face. Try to focus on interests rather than on positions, and to always ask yourself "Why not?" when you hear what the other side has to say.

One of the most important skills you can bring to your mediation session is the ability to actively listen to what the other side is saying. Active listening involves paying close attention to what the other side is saying, and restating his or her position to ensure that you know what the other side means and to ensure that the other side recognizes that you're hearing what he or she is saying. Phrases like "What I hear you saying is..." and "If I understand you correctly, what you're saying is..." can be extremely helpful. At the same time, you must also take some care in how you choose to express yourself. Instead of saying "You did..." or "You're a...," try something like "When you did that I felt..." or "I feel that..." This may all seem a bit flaky, but believe it or not it works.

You must be able to talk directly about a problem in an assertive, direct manner. Talk about the issues; don't skirt around them, no matter how uncomfortable or awkward you might feel. Take care in how you express yourself, but when you're in a private session with the mediator, don't mince words.

===Things to do===

The following points boil down to just a few central ideas: respect yourself and the other side; be flexible and avoid taking absolute positions; and, be honest and open. When you go into the mediation session, try to have a few options prepared, a few other alternatives that you might be happy with, rather than a single fixed, rigid goal.

* Be honest. Trust is essential to the mediation process.
* Be empathetic. Use phrases that indicate you understand and respect how the other party is feeling and thinking, like "I understand how you're feeling..." or "I appreciate the effort you've put into this..."
* Ask for a break when you're feeling too wound up or upset to continue, rather than abandoning the session.
* Dress comfortably and be prompt.
* If you disagree with something, say so. You must respect, and express, your own thoughts, opinions and feelings.
* Bring the documents you were asked to bring. If you don't, matters will only be delayed and the other side may be irritated by the inconvenience.
* Watch your body language! Making disgusted grunts, rolling your eyes, or slamming your fist on the table won't help anything.

===Things not to do===

Suspicion and dishonesty will damage the mediation process, sometimes beyond repair. If the mediator doesn't believe you and the other party doesn't believe you, it might be impossible to arrive at a negotiated settlement. Likewise, bitterness, jealousy and resentment can also be triggers that undermine each party's faith in the other and make resolution by a judge at a trial inevitable.

*Try to avoid letting your emotions get tangled up with your analysis of the problem at hand.
* Don't hide information, financial or otherwise, on the assumption that the other party won't find out. They usually do, and if they do the process is likely at an end.
* Don't raise your voice or make comments that are hurtful.
* Don't interrupt. Wait until each person has stopped speaking before you interject, no matter how upset you might feel with what he or she is saying.
* Negotiations are stressful, but don't use drugs or alcohol to calm your nerves. Drugs and alcohol will impair your judgment and reduce your ability to be objective and bargain in your own best interests.
* Don't feel that you must give an instant answer when you can't. Take a few moments or a few minutes to compose your reply; no one will begrudge a considered response.
* Don't make personal attacks or threats.
* Don't play on the other person's sense of guilt or otherwise be emotionally manipulative.

==Government mediation services==

The provincial government offers mediation for family law disputes through the [http://www.mediatebc.com/PDFs/1-13-Apply-(FM)/Property-Division-Practicum-Mediator-Application-F.aspx Family Mediation Practicum Project] and its successor the [http://www.mediatebc.com/PDFs/1-14-Family-Mediation---FAQs/FMSClientBrochSept2012-web.aspx Regional Mentoring Program], both of which are operated by [http://www.mediatebc.com Mediate BC]. There are also [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors] with the Provincial Court, and they work in [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres] across BC. Other agencies and organizations may provide mediation services, however make sure that they can help with family law disputes before trying to get help.

===Regional Mentoring Program===

Mediate BC's [http://www.mediatebc.com/PDFs/1-14-Family-Mediation---FAQs/FMSClientBrochSept2012-web.aspx Regional Mentoring Program] was introduced in April 2012 and pairs a highly qualified mentor mediator with a mediator in training to mediate family disputes. The mediators provide legal information, and also provide support in developing options to resolve disputes, including property division.

To reach Mediate BC's family mediation services about this program call:

:Phone: 604-684-1300 ext. 23
:Toll-free: 1-855-660-8406

===Family justice counsellors===

Mediation is available from family justice counsellors through those Provincial Court registries that are designated as [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]. Family justice counsellors are fully trained mediators, certified by [http://www.fmc.ca/ Family Mediation Canada], who work with separated parents to assist in resolving disputes over the care of children, child support, and spousal support. Family justice counsellors can't deal with property issues and they usually can't help with support when someone's income is not straightforward.

Clicklaw's website includes a current list of [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres].

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://www.canlii.org/en/bc/laws/regu/b-c-reg-347-2012/latest/b-c-reg-347-2012.html#sec4subsec1 Family Law Act Regulation]
* [http://canlii.ca/t/85bd Notice to Mediate Regulation]

===Links===

* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC Website for Family Mediation Services]
* [http://www.mediatebc.com/PDFs/1-13-Apply-(FM)/Property-Division-Practicum-Mediator-Application-F.aspx Family Mediation Practicum Project]
* [http://www.mediatebc.com/PDFs/1-14-Family-Mediation---FAQs/FMSClientBrochSept2012-web.aspx Regional Mentoring Program]
* [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors Provincial Court family justice counsellors]
* [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]



{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Law Mediation

2017-08-03T00:28:10Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
{{Clicklawbadge
| resourcetype = an answer to the question
| link = "[http://www.clicklaw.bc.ca/question/commonquestion/1121 What can mediation help me with?]"
}}{{LSSbadge
|resourcetype = more information about
|link = [http://www.familylaw.lss.bc.ca/help/who_Mediators.php Mediators]
}}Mediation is a process in which the two sides of a dispute work with a neutral third party, a mediator, to reach an agreement that deals with all or some of the issues in dispute. Mediation is not couples counselling; it is a legal process intended to help resolve a dispute without going to court. Mediators are usually trained professionals, and lawyers who are family law mediators are specially accredited by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides a brief overview of mediation, a description of the mediation process, some tips for making the most of mediation, and an introduction to the mediation services offered through the provincial government.

==Introduction==

At its heart, mediation is a cooperative, managed process of negotiation. Both parties must be willing to work together and each must be prepared to give a little and take a little. Because the mediation process is based on a cooperative effort to achieve a common goal, a settlement of the legal issues, there is usually a lot less of the bitterness and acrimony that can accompany litigation. Mediation is also much, much cheaper than litigation.

A couple can start mediation as an alternative to court or as a settlement process after a court proceeding has started. The result of a successful process of mediation is usually a ''separation agreement''. If litigation has started, a settlement can be recorded as either a separation agreement or as an order that the parties agree the court will make, called a ''consent order''. If a couple are married, a consent order may make sense since they'll require an order for their divorce anyway.

Normally, just the people involved in the dispute attend mediation with their mediator, but they can bring their lawyers along as as well. The mediator's job is to facilitate the parties' negotiations, to provide a neutral third-party perspective, and to help ensure that any settlement is reasonably fair to all concerned, including the children of the relationship. As a mediator myself, I often appreciate having the lawyers present; it makes my job easier if I can rely on the lawyers to explain the law or to point out why a particular position is ill-advised.

The mediator has no stake in how the mediation turns out, and should have no bias in favour of either party and no special connection with either party. The mediator's position as a neutral third party is probably the mediator's most important role. It allows the mediator to be absolutely frank with each of the parties, and to point out when a party's expectations for an issue are unrealistic. Someone involved in mediation is a lot more likely to accept that their position is unreasonable when a mediator says so, rather than the other party.

==The mediation process==

The first step is for each party to hire a lawyer. Even if you don't intend on hiring the lawyer for the whole mediation process or have the lawyer present at the mediation, it can be critical to meet with a lawyer before the process begins to get some proper legal advice about the law that applies to your situation, and a sense of the general range of likely outcomes and the options available to you.

If you plan on retaining the lawyer for the mediation process, the lawyer will have the names of three or four mediators with whom they prefers to work. [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC], formerly the BC Mediation Roster Society, maintains a list of many, but not all, of the people who are trained as mediators in this province. Their website can help you find a mediator and offers more information about the mediation process. Many family law lawyers, who may or may not be members of Mediate BC, are also accredited family law mediators; lawyers who work as mediators will usually say so in their advertising.

===Getting organized===

The mediator will usually meet with the parties separately before the actual mediation begins. This is because mediators, like arbitrators, parent coordinators, and other Family Dispute Resolution Professionals, now have a positive duty to screen parties to determine if family violence is present and if it is, to ensure that the mediation process is safe for all concerned. Mediators also need to refer the victim of family violence to whatever resources may be available.

In addition to screening for family violence, the pre-mediation meeting also gives the mediator a chance to get to know the parties a bit, and for the parties to discuss with the mediator any concerns or questions they might have.

Next, the parties and the mediator will agree to a schedule of meetings, the ground rules for these meetings, and the objects or goals of the process. Sometimes the decisions as to ground rules and goals are left to the parties themselves; it is their process, after all, not that of the mediator. If the parties are using lawyers, this step may be left out since ground rules aren't required or because the lawyers will be able to agree on the ground rules between themselves. Whether there are multiple meetings or not depends largely on the parties and the number of issues outstanding. Often a single half- or full-day meeting will produce a settlement.

===Exchanging information===
{{LSSbadge
|resourcetype = guides on preparing Financial Statements
|link = [http://www.familylaw.lss.bc.ca/guides/mini/howtofillfinanstate_sc.php for Supreme Court] and [http://www.familylaw.lss.bc.ca/guides/mini/howToFillFinanState_PC.php Provincial Court]
}}The parties will then begin to assemble the documents required to explain their separate financial situations. Often this will consist only of completing a financial statement. A financial statement is a useful court form that sets out each party's income and expenses, and assets and debts.

Supporting documents will have to be gathered as well, which will usually consist of things like:

*income tax returns,
*pay stubs or other proof of income,
*property assessments or appraisals, and,
*corporate financial statements and tax returns.

It is critical that both parties are honest and forthcoming about their finances; nothing will damage the mediation process more than the discovery that someone is hiding information or acting in bad faith.

These documents will then be exchanged between the parties in preparation for the first mediation session. Based on the documents disclosed and the issues on the table, additional documentation may be required to be produced and exchanged. A party who is self-employed may have to produce corporate financial statements and corporate tax returns in addition to the usual materials. The extent of any additional materials will depend entirely on the circumstances of each couple and their children.

As well, the parties may need further additional input and information from people such as child psychologists, accountants, and the like. If these people are needed to help settle matters, there may be an additional waiting period while these experts conduct their investigations and prepare their reports.

===Exchanging briefs===

Where the parties are represented by lawyers, the mediator may ask the lawyers to prepare ''mediation briefs''. Mediation briefs are summaries of the parties' relationship and each party's position and, when a position is legally complex or technical, an explanation of the law or facts supporting that position. The lawyers will give copies of their briefs to each other and to the mediator ahead of the first mediation session.

===Mediating the dispute===

Once all the information, reports, and briefs have been gathered and exchanged, and everybody has had a chance to digest everything, the parties, the lawyers and the mediator will meet at one or more mediation sessions. The mediator will first welcome everyone to the table, and ask the parties to sign a mediation agreement before anything else happens. The mediation agreement sets out the terms of the mediation sessions, requires the parties not to use the discussions held during mediation in any litigation, and describes the terms on which the mediator will be paid.

After the mediation agreement has been signed, each mediator will have their own preferred way of doing things. Most will ask someone to provide a general overview of the relationship and describe what exactly is at issue. Each party will have the opportunity to state their position on things. If lawyers are being used, they will inevitably do most of the talking, but the parties themselves will have ample opportunity to speak their minds... and you really should, it's your dispute!

Once this initial exchange of positions is complete, the mediator may keep everyone in the same room or may split the parties into separate rooms. If the parties are kept together, the mediator will press on and work on the problem, issue by issue. The mediator will keep some control over how the discussion flows, tamp the emotions down when things get heated, and keep everyone focused on their interests and the law rather than their emotions and the grievances of the past. If the parties are split into separate rooms, the mediator will alternate working with each party and will shuttle between each of the rooms. You may hear people describe this style of mediation as ''shuttle mediation''.

Assuming the mediation process is successful, the mediator will often prepare a list describing how each issue has been resolved, called ''minutes of settlement''. The minutes are usually rather informal and are meant to record the bare bones of the settlement in the expectation that a more complete document, like a separation agreement or a consent order, will be prepared in the future. The parties and sometimes their lawyers will be asked to sign the minutes to acknowledge the settlement that was reached.

===Formalizing the settlement===

The final stage involves the putting the terms of the agreement into more formal language in a legal document that both parties, or, depending on the type of document, their lawyers will sign. Typically, a settlement will be recorded as a separation agreement or, if there is an existing court proceeding or the parties need to get divorced, an order that the parties agree the court should make.

If a party changes their mind before the separation agreement or consent order is filed, the minutes of settlement can be enforced in court as evidence of the deal reached between the parties. In fact, in certain circumstances the mediator's notes alone may stand as proof of the parties' agreement. As long as it is plain what has been agreed to and that the intentions of the parties were finally settled, the minutes or the mediator's notes can be used as evidence of a binding agreement.

Note that if you are relying on a mediated settlement in court, it is important that the settlement be conclusive and leaving nothing else for further negotiation or confirmation. In the 2005 British Columbia Supreme Court case of ''[http://canlii.ca/t/1q34b S.A.A. v. P.W.J.A.]'', 2005 BCSC 603, the court held that the parties couldn't rely on an agreement that was "subject to confirmation" as a final, binding agreement. In that case, the agreement was subject to the wife producing financial information which, when produced, did not confirm the information provided at mediation.

==Tips for successful mediation==

In mediation, as in all other forms of negotiation, the goal is to produce a fair agreement in an efficient and cooperative way. There are lots of things you can do that will hinder this process, and other things you can do that will help. The following are a few tips on how to make mediation work for you.

Remember that the more you argue about a particular position of yours, the more you wind up being stuck with that position. Many people find that after they've argued a particular point to death, they're stuck with it because they can't back down without losing face. Try to focus on interests rather than on positions, and to always ask yourself "Why not?" when you hear what the other side has to say.

One of the most important skills you can bring to your mediation session is the ability to actively listen to what the other side is saying. Active listening involves paying close attention to what the other side is saying, and restating their position to ensure that you know what the other side means and to ensure that the other side recognizes that you're hearing what they are saying. Phrases like "What I hear you saying is..." and "If I understand you correctly, what you're saying is..." can be extremely helpful. At the same time, you must also take some care in how you choose to express yourself. Instead of saying "You did..." or "You're a...," try something like "When you did that I felt..." or "I feel that..." This may all seem a bit flaky, but believe it or not it works.

You must be able to talk directly about a problem in an assertive, direct manner. Talk about the issues; don't skirt around them, no matter how uncomfortable or awkward you might feel. Take care in how you express yourself, but when you're in a private session with the mediator, don't mince words.

===Things to do===

The following points boil down to just a few central ideas: respect yourself and the other side; be flexible and avoid taking absolute positions; and, be honest and open. When you go into the mediation session, try to have a few options prepared, a few other alternatives that you might be happy with, rather than a single fixed, rigid goal.

* Be honest. Trust is essential to the mediation process.
* Be empathetic. Use phrases that indicate you understand and respect how the other party is feeling and thinking, like "I understand how you're feeling..." or "I appreciate the effort you've put into this..."
* Ask for a break when you're feeling too wound up or upset to continue, rather than abandoning the session.
* Dress comfortably and be prompt.
* If you disagree with something, say so. You must respect, and express, your own thoughts, opinions and feelings.
* Bring the documents you were asked to bring. If you don't, matters will only be delayed and the other side may be irritated by the inconvenience.
* Watch your body language! Making disgusted grunts, rolling your eyes, or slamming your fist on the table won't help anything.

===Things not to do===

Suspicion and dishonesty will damage the mediation process, sometimes beyond repair. If the mediator doesn't believe you and the other party doesn't believe you, it might be impossible to arrive at a negotiated settlement. Likewise, bitterness, jealousy and resentment can also be triggers that undermine each party's faith in the other and make resolution by a judge at a trial inevitable.

*Try to avoid letting your emotions get tangled up with your analysis of the problem at hand.
* Don't hide information, financial or otherwise, on the assumption that the other party won't find out. They usually do, and if they do the process is likely at an end.
* Don't raise your voice or make comments that are hurtful.
* Don't interrupt. Wait until each person has stopped speaking before you interject, no matter how upset you might feel with what they are saying.
* Negotiations are stressful, but don't use drugs or alcohol to calm your nerves. Drugs and alcohol will impair your judgment and reduce your ability to be objective and bargain in your own best interests.
* Don't feel that you must give an instant answer when you can't. Take a few moments or a few minutes to compose your reply; no one will begrudge a considered response.
* Don't make personal attacks or threats.
* Don't play on the other person's sense of guilt or otherwise be emotionally manipulative.

==Government mediation services==

The provincial government offers mediation for family law disputes through the [http://www.mediatebc.com/PDFs/1-13-Apply-(FM)/Property-Division-Practicum-Mediator-Application-F.aspx Family Mediation Practicum Project] and its successor the [http://www.mediatebc.com/PDFs/1-14-Family-Mediation---FAQs/FMSClientBrochSept2012-web.aspx Regional Mentoring Program], both of which are operated by [http://www.mediatebc.com Mediate BC]. There are also [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors] with the Provincial Court, and they work in [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres] across BC. Other agencies and organizations may provide mediation services, however make sure that they can help with family law disputes before trying to get help.

===Regional Mentoring Program===

Mediate BC's [http://www.mediatebc.com/PDFs/1-14-Family-Mediation---FAQs/FMSClientBrochSept2012-web.aspx Regional Mentoring Program] was introduced in April 2012 and pairs a highly qualified mentor mediator with a mediator in training to mediate family disputes. The mediators provide legal information, and also provide support in developing options to resolve disputes, including property division.

To reach Mediate BC's family mediation services about this program call:

:Phone: 604-684-1300 ext. 23
:Toll-free: 1-855-660-8406

===Family justice counsellors===

Mediation is available from family justice counsellors through those Provincial Court registries that are designated as [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]. Family justice counsellors are fully trained mediators, certified by [http://www.fmc.ca/ Family Mediation Canada], who work with separated parents to assist in resolving disputes over the care of children, child support, and spousal support. Family justice counsellors can't deal with property issues and they usually can't help with support when someone's income is not straightforward.

Clicklaw's website includes a current list of [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres].

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://www.canlii.org/en/bc/laws/regu/b-c-reg-347-2012/latest/b-c-reg-347-2012.html#sec4subsec1 Family Law Act Regulation]
* [http://canlii.ca/t/85bd Notice to Mediate Regulation]

===Links===

* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC Website for Family Mediation Services]
* [http://www.mediatebc.com/PDFs/1-13-Apply-(FM)/Property-Division-Practicum-Mediator-Application-F.aspx Family Mediation Practicum Project]
* [http://www.mediatebc.com/PDFs/1-14-Family-Mediation---FAQs/FMSClientBrochSept2012-web.aspx Regional Mentoring Program]
* [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors Provincial Court family justice counsellors]
* [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]



{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016}}

{{JP Boyd on Family Law Navbox|type=chapters}}

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[[Category:JP Boyd on Family Law]]

Collaborative Negotiation

2017-08-03T00:18:23Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
{{Clicklawbadge
|resourcetype = more resources like this website from the BC Ministry of Justice on
|link = [http://www.clicklaw.bc.ca/resource/1191 Collaborative Law]
}}
{{LSSbadge
|resourcetype = more information on
|link = [http://www.familylaw.lss.bc.ca/help/who_CollaborativeFamilyLawyers.php collaborative family lawyers]
}}In collaborative settlement processes, the parties, their lawyers, and their counsellors work together as a team to find a resolution of the issues arising from the breakdown of the parties' relationship, and consult experts such as child specialists and financial specialists as the need arises. The collaborative process is meant to address both the legal and the emotional consequences of the breakdown of a relationship.

This section provides a provides a brief introduction to collaborative settlement processes, a step-by-step overview of what happens, and a description of the roles played by each of the team members.

==Introduction==

The breakdown of a relationship is an extraordinarily difficult experience for everyone involved. Contrary to the impression you might form from much of the rest of this website, a couple's legal difficulties are only one part of the whole experience of ending a long-term relationship. The purpose shared by all collaborative processes is to provide a non-adversarial space for the parties to resolve their issues and emerge, at the end of the process, as emotionally- and psychologically-whole people.

Litigation, which used to be the primary mechanism for resolving family law disputes, is adversarial by nature. Rather than improving things, it usually aggravates the emotional difficulties couples face when their relationship breaks down, throwing gasoline rather than water on the fire. In collaborative processes, on the other hand, the parties agree that they will not go to court, and sign an agreement to that effect, and mental health professionals are included in the process as necessary.

Of course, not every couple is suited to a collaborative approach. This process requires honesty and good faith, both to oneself and to others. Sometimes the breakdown of a relationship is so full of anger and bitterness that no approach will work except for litigation. If each party isn't willing to use and embrace the collaborative process, it simply will not work.

==Overview==

The following discussion takes a general look at collaborative settlement processes. Since collaborative approaches are very much tailored to the unique circumstances of each couple, their preferences and those of their lawyers, you should read what follows with a grain of salt. This description may not represent how you or your collaborative lawyer will prefer to do things.

===Finding a collaborative lawyer===

The first step is for each spouse to find and hire a lawyer. You should look for a lawyer experienced in collaborative law, or, at a bare minimum, one who is open to the idea; most lawyers who practise collaborative law will expressly describe themselves as collaborative lawyers or collaborative practitioners in their promotional materials. The lawyers will then explain the collaborative process to their respective clients, and contact each other to prepare a collaborative process participation agreement.

A good place to start looking for a lawyer is the website of the collaborative law practice group nearest you, such as:

* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver],
* [http://nocourt.net Collaborative Association in Metro Vancouver],
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals],
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group], and
* [http://www.nocourt.ca Collaborative Law Group of Nelson].

A quick [http://www.google.com/search?q=collaborative+law+bc Google search] for "<tt>collaborative law bc</tt>" should net you some additional resources, including collaborative family law lawyers in your area.

===Signing the participation agreement===

The parties and their lawyers will then sign the participation agreement that commits them to working together, using non-adversarial problem-solving techniques and cooperative negotiation strategies, to reach a fair settlement without going to court. You are not in a collaborative process unless you and your lawyer have signed a participation agreement.

The participation agreement will contain a number of terms that are very important to understand. Among other things, most participation agreements require that:

*the parties are to discuss the issues in a frank and respectful manner, and not make unfounded accusations,
*while the collaborative process is underway, neither party will start proceedings in court,
*if litigation starts, both lawyers must withdraw and cannot continue to represent their clients,
*a lawyer must end the collaborative process if their client withholds or misrepresents information, and
*all communications generated during the process are to be kept strictly confidential.

Most participation agreements also say that there is no settlement until a separation agreement has been signed. This is to make sure that everyone is committed to the settlement and prepared to be bound by its terms.

===Hiring the professional advisors===

The parties and their lawyers will then start talking about whether any other help is likely to be needed, such as from counsellors or divorce coaches, child specialists (if there are children involved), or financial advisors (if there are complex financial issues). Child specialists and financial advisors are neutral in their approach and are not hired to represent or advocate for either party. Rather, their role is to help the process along by providing objective information, opinions and options about the subjects at issue.

Where the legal and emotional issues are straightforward, it's possible that no other professionals need to be hired. If something comes up during the process which suggests that it would be helpful to recruit a new team member, the professional can be hired then.

===Making disclosure===

The team then begins the process of making disclosure of all documents and information relevant to the issues between the parties. The collaborative process is not a poker game, with each spouse bluffing the other and trying to take advantage; this process is transparent and requires absolute and unswerving honesty. Relevant documents often include:

*current and historic statements for bank accounts, retirement savings accounts and investment accounts,
*current statements for loans, mortgages and credit cards,
*tax returns,
*corporate financial statements and corporate tax returns, and
*confirmation of income.

The parties produce their documents and information to each other on the understanding that the information (except for certain legal documents such as financial statements) and the content of the negotiations will never be used in court, but will remain private and confidential among those involved in the collaborative process.

===Starting discussions===

Once full disclosure has been made, the parties then begin to talk about what their personal interests and expectations are, and about what potential settlements might look like. This can be a short process or a long process, depending on the complexity of the emotional issues and the distance between the outcomes each party hopes to achieve. It may be necessary to delay things to get financial advice or for a property or business to be valued, to get some counselling, or to get an opinion from the child specialist.

Discussions between the parties and their lawyers will continue until a resolution is reached with which both parties are as happy as possible. You can expect that this will be a process of mutual compromise, and that the ultimate resolution will reflect neither party's original position.

Along the way, depending on the nature of the issues, one or more temporary agreements may be reached. These are not meant to be a final determination of the issues, rather they are temporary, stop-gap solutions intended to deal with problems like the sale of the family home, the parties' time with the children over holidays, and so forth. These interim agreements will all be replaced by the final agreement.

You may want to have a look at "[[Family Law Mediation#Tips for successful mediation|Tips for successful mediation]]" in the section on [[Family Law Mediation]] in this chapter. It has information about communication skills that can be helpful during the negotiation process.

===Signing the final agreement===

The terms of the settlement will be put into a formal separation agreement by one of the lawyers. The parties and the other lawyer will all be asked for comment. Changes and adjustments will be made before the separation agreement is signed.

The collaborative process normally ends with the signing of the final agreement. However, until and unless the participation agreement is cancelled or set aside, the lawyers will remain bound by the terms of the agreement and cannot start a court proceeding on things covered by the separation agreement, even to enforce the agreement.

Read the [[Separation Agreements]] section in the [[Family Agreements]] chapter for a discussion about separation agreements and their effect.

==The team==

The collaborative team includes the parties' lawyers, who are family law lawyers with special training in collaborative processes. It may also include mental health professionals, usually psychologists or registered clinical counsellors, who work as the parties' divorce coaches. Where appropriate, a financial specialist and a child specialist may also be part of the team. All team members work cooperatively with each other and the parties, and sometimes the parties' children.

The degree to which each of these professionals may become involved will depend on the particular circumstances of each couple. For some couples, the child specialist will become the key team member, for others it may be their divorce coaches. A financial specialist may be unnecessary when the financial issues are straightforward, but when they are particularly complicated, the financial specialist may be critical to the success of the collaborative process.

===The lawyers===

The role of the lawyers in the collaborative process is to advance the needs and protect the interests of their respective clients. The lawyers advise their clients on their legal rights and obligations, and provide them with information about the law, and the probable long- and short-term results of any particular decision.

However, in the collaborative approach to dispute resolution, the lawyers are also part of a team that is collectively dedicated to finding a comprehensive settlement. As a result, the parties' lawyers can be expected to behave in a much more transparent manner and work in a manner that is geared towards both parties' success.

===The counsellors===

The divorce coaches are psychologists and registered clinical counsellors, and are useful whether the parties are married or not. (Frankly "divorce coach" is a rather in accurate name for these team members.) They help guide their clients through the emotional turbulence of the breakdown of their relationship, and assist each party to maintain a relatively objective view of the situation. They may also help their clients develop their views on the issues and help them develop more effective communication strategies.

The divorce coaches will talk to each other and to the lawyers during the collaborative process, and share their respective clients' experiences and concerns. The divorce coaches may also work together, sometimes in joint sessions with the parties, to develop strategies and solutions for the benefit of everyone.

===The financial advisor===

This financial advisor is a neutral party in the process, someone without any loyalty to either party, who is able to look at things objectively and impartially. Their job is to present options to help the parties deal with the financial aspects of their relationship and their short- and long-term needs.

===The child specialist===

This child specialist is another neutral party. Their job is to represent the interests of the children, without any duty of loyalty to either parent. While all of the team members are of course concerned about the best interests of the children, the purposes of the child specialist are to ensure that the children remain a primary concern, to help the parties develop a proper parenting plan, and to identify and address issues regarding the children's future care.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''

===Links===
* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society]
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver]
* [http://nocourt.net/ Collaborative Association in Metro Vancouver]
* Victoria's [http://www.collaborativefamilylawgroup.com Collaborative Family Law Group]
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group]
* [http://www.nocourt.ca Collaborative Law Group of Nelson]

===Downloads===

A sample collaborative settlement process participation agreement is available for download: [[Media:Participation Agreement sample.pdf | Participation Agreement (Sample) PDF]]

In the sample, Jane Doe and John Doe are entering into a participation agreement with their lawyers.

This sample document is just a generic reference. While it represents a more or less accurate picture of how these sorts of agreements might look, it may not be applicable to your situation. It may not resemble the agreement you will sign if you decide to use a collaborative settlement process. Use it as a reference only.

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Collaborative Negotiation

2017-08-03T00:17:42Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
{{Clicklawbadge
|resourcetype = more resources like this website from the BC Ministry of Justice on
|link = [http://www.clicklaw.bc.ca/resource/1191 Collaborative Law]
}}
{{LSSbadge
|resourcetype = more information on
|link = [http://www.familylaw.lss.bc.ca/help/who_CollaborativeFamilyLawyers.php collaborative family lawyers]
}}In collaborative settlement processes, the parties, their lawyers, and their counsellors work together as a team to find a resolution of the issues arising from the breakdown of the parties' relationship, and consult experts such as child specialists and financial specialists as the need arises. The collaborative process is meant to address both the legal and the emotional consequences of the breakdown of a relationship.

This section provides a provides a brief introduction to collaborative settlement processes, a step-by-step overview of what happens, and a description of the roles played by each of the team members.

==Introduction==

The breakdown of a relationship is an extraordinarily difficult experience for everyone involved. Contrary to the impression you might form from much of the rest of this resource, a couple's legal difficulties are only one part of the whole experience of ending a long-term relationship. The purpose shared by all collaborative processes is to provide a non-adversarial space for the parties to resolve their issues and emerge, at the end of the process, as emotionally- and psychologically-whole people.

Litigation, which used to be the primary mechanism for resolving family law disputes, is adversarial by nature. Rather than improving things, it usually aggravates the emotional difficulties couples face when their relationship breaks down, throwing gasoline rather than water on the fire. In collaborative processes, on the other hand, the parties agree that they will not go to court, and sign an agreement to that effect. Mental health professionals are included in the process as necessary.

Of course, not every couple is suited to a collaborative approach. This process requires honesty and good faith, both to oneself and to others. Sometimes the breakdown of a relationship is so full of anger and bitterness that no approach will work except for litigation. If each party isn't willing to use and embrace the collaborative process, it simply will not work.

==Overview==

The following discussion takes a general look at collaborative settlement processes. Since collaborative approaches are very much tailored to the unique circumstances of each couple, their preferences and those of their lawyers, you should read what follows with a grain of salt. This description may not represent how you or your collaborative lawyer will prefer to do things.

===Finding a collaborative lawyer===

The first step is for each spouse to find and hire a lawyer. You should look for a lawyer experienced in collaborative law, or, at a bare minimum, one who is open to the idea; most lawyers who practise collaborative law will expressly describe themselves as collaborative lawyers or collaborative practitioners in their promotional materials. The lawyers will then explain the collaborative process to their respective clients, and contact each other to prepare a collaborative process participation agreement.

A good place to start looking for a lawyer is the website of the collaborative law practice group nearest you, such as:

* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver],
* [http://nocourt.net Collaborative Association in Metro Vancouver],
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals],
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group], and
* [http://www.nocourt.ca Collaborative Law Group of Nelson].

A quick [http://www.google.com/search?q=collaborative+law+bc Google search] for "<tt>collaborative law bc</tt>" should net you some additional resources, including collaborative family law lawyers in your area.

===Signing the participation agreement===

The parties and their lawyers will then sign the participation agreement that commits them to working together, using non-adversarial problem-solving techniques and cooperative negotiation strategies, to reach a fair settlement without going to court. You are not in a collaborative process unless you and your lawyer have signed a participation agreement.

The participation agreement will contain a number of terms that are very important to understand. Among other things, most participation agreements require that:

*the parties are to discuss the issues in a frank and respectful manner, and not make unfounded accusations,
*while the collaborative process is underway, neither party will start proceedings in court,
*if litigation starts, both lawyers must withdraw and cannot continue to represent their clients,
*a lawyer must end the collaborative process if their client withholds or misrepresents information, and
*all communications generated during the process are to be kept strictly confidential.

Most participation agreements also say that there is no settlement until a separation agreement has been signed. This is to make sure that everyone is committed to the settlement and prepared to be bound by its terms.

===Hiring the professional advisors===

The parties and their lawyers will then start talking about whether any other help is likely to be needed, such as from counsellors or divorce coaches, child specialists (if there are children involved), or financial advisors (if there are complex financial issues). Child specialists and financial advisors are neutral in their approach and are not hired to represent or advocate for either party. Rather, their role is to help the process along by providing objective information, opinions and options about the subjects at issue.

Where the legal and emotional issues are straightforward, it's possible that no other professionals need to be hired. If something comes up during the process which suggests that it would be helpful to recruit a new team member, the professional can be hired then.

===Making disclosure===

The team then begins the process of making disclosure of all documents and information relevant to the issues between the parties. The collaborative process is not a poker game, with each spouse bluffing the other and trying to take advantage; this process is transparent and requires absolute and unswerving honesty. Relevant documents often include:

*current and historic statements for bank accounts, retirement savings accounts and investment accounts,
*current statements for loans, mortgages and credit cards,
*tax returns,
*corporate financial statements and corporate tax returns, and
*confirmation of income.

The parties produce their documents and information to each other on the understanding that the information (except for certain legal documents such as financial statements) and the content of the negotiations will never be used in court, but will remain private and confidential among those involved in the collaborative process.

===Starting discussions===

Once full disclosure has been made, the parties then begin to talk about what their personal interests and expectations are, and about what potential settlements might look like. This can be a short process or a long process, depending on the complexity of the emotional issues and the distance between the outcomes each party hopes to achieve. It may be necessary to delay things to get financial advice or for a property or business to be valued, to get some counselling, or to get an opinion from the child specialist.

Discussions between the parties and their lawyers will continue until a resolution is reached with which both parties are as happy as possible. You can expect that this will be a process of mutual compromise, and that the ultimate resolution will reflect neither party's original position.

Along the way, depending on the nature of the issues, one or more temporary agreements may be reached. These are not meant to be a final determination of the issues, rather they are temporary, stop-gap solutions intended to deal with problems like the sale of the family home, the parties' time with the children over holidays, and so forth. These interim agreements will all be replaced by the final agreement.

You may want to have a look at [[Family Law Mediation#Tips for successful mediation|Tips for successful mediation]] in the section on [[Family Law Mediation]] in this chapter. It has information about communication skills that can be helpful during the negotiation process.

===Signing the final agreement===

The terms of the settlement will be put into a formal separation agreement by one of the lawyers. The parties and the other lawyer will all be asked for comment. Changes and adjustments will be made before the separation agreement is signed.

The collaborative process normally ends with the signing of the final agreement. However, until and unless the participation agreement is cancelled or set aside, the lawyers will remain bound by the terms of the agreement and cannot start a court proceeding on things covered by the separation agreement, even to enforce the agreement.

Read the [[Separation Agreements]] section in the [[Family Agreements]] chapter for a discussion about separation agreements and their effect.

==The team==

The collaborative team includes the parties' lawyers, who are family law lawyers with special training in collaborative processes. It may also include mental health professionals, usually psychologists or registered clinical counsellors, who work as the parties' divorce coaches. Where appropriate, a financial specialist and a child specialist may also be part of the team. All team members work cooperatively with each other and the parties, and sometimes the parties' children.

The degree to which each of these professionals may become involved will depend on the particular circumstances of each couple. For some couples, the child specialist will become the key team member, for others it may be their divorce coaches. A financial specialist may be unnecessary when the financial issues are straightforward, but when they are particularly complicated, the financial specialist may be critical to the success of the collaborative process.

===The lawyers===

The role of the lawyers in the collaborative process is to advance the needs and protect the interests of their respective clients. The lawyers advise their clients on their legal rights and obligations, and provide them with information about the law, and the probable long- and short-term results of any particular decision.

However, in the collaborative approach to dispute resolution, the lawyers are also part of a team that is collectively dedicated to finding a comprehensive settlement. As a result, the parties' lawyers can be expected to behave in a much more transparent manner and work in a manner that is geared towards both parties' success.

===The counsellors===

The ''divorce coaches'' are psychologists and registered clinical counsellors, and are useful whether the parties are married or not. (Frankly divorce coach is a rather inaccurate name for these team members.) They help guide their clients through the emotional turbulence of the breakdown of their relationship, and assist each party to maintain a relatively objective view of the situation. They may also help their clients develop their views on the issues and help them develop more effective communication strategies.

The divorce coaches will talk to each other and to the lawyers during the collaborative process, and share their respective clients' experiences and concerns. The divorce coaches may also work together, sometimes in joint sessions with the parties, to develop strategies and solutions for the benefit of everyone.

===The financial advisor===

The financial advisor is a neutral party in the process, someone without any loyalty to either party, who is able to look at things objectively and impartially. Their job is to present options to help the parties deal with the financial aspects of their relationship and their short- and long-term needs.

===The child specialist===

The child specialist is another neutral party. Their job is to represent the interests of the children, without any duty of loyalty to either parent. While all of the team members are of course concerned about the best interests of the children, the purposes of the child specialist are to ensure that the children remain a primary concern, to help the parties develop a proper parenting plan, and to identify and address issues regarding the children's future care.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''

===Links===
* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society]
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver]
* [http://nocourt.net/ Collaborative Association in Metro Vancouver]
* Victoria's [http://www.collaborativefamilylawgroup.com Collaborative Family Law Group]
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group]
* [http://www.nocourt.ca Collaborative Law Group of Nelson]

===Downloads===

A sample collaborative settlement process participation agreement is available for download: [[Media:Participation Agreement sample.pdf | Participation Agreement (Sample) PDF]]

In the sample, Jane Doe and John Doe are entering into a participation agreement with their lawyers.

This sample document is just a generic reference. While it represents a more or less accurate picture of how these sorts of agreements might look, it may not be applicable to your situation. It may not resemble the agreement you will sign if you decide to use a collaborative settlement process. Use it as a reference only.

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Divorce and the Law on Getting Divorced

2017-08-02T22:17:48Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]] and [[Thomas Wallwork]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Divorce]
}}Divorce is the legal termination of a marriage by an order of the court. Without this order, a couple will remain married to each other no matter how long they've been separated. Although a divorce order represents the formal conclusion of a marriage, where children are involved or one spouse is financially dependent on the other, issues about the payment of support and the care of the children will continue.

This section provides an overview of the grounds for divorce, and discusses the nature of a divorce order and the effect of foreign divorce orders in Canada. It also reviews the do-it-yourself divorce process, and the court forms used in that process, in enough detail that you can get your own divorce without having to hire a lawyer.

The criteria that must be met to obtain an annulment ― which is different than a divorce order and isn't nearly as simple and straightforward as most people think ― are discussed in the chapter [[Family Relationships]] within the section [[Marriage & Married Spouses]].

==Preconditions for applying for a divorce in BC==

If you want to get a divorce in BC, you must first satisfy three conditions:

#You must be legally married. If your marriage was legally valid in the place you got married, it counts as a legal marriage in BC. To prove you were legally married you will need to provide a marriage certificate issued in the country where you were married. If you can't get a marriage certificate, you'll need to find witnesses who saw you get married. These witnesses will need to either testify or swear an affidavit saying that they saw you get married.
#Generally, you or your spouse must live in BC and have lived here for at least a year. The one exception to this rule is if you were married in BC, and you lived somewhere in the last year that wouldn't let you get divorced. If you take advantage of this exception, you can only get a divorce in BC. Claims about children, property division, and child and spousal support must be dealt with where you and your spouse live.
#You must prove that you have been separated from your spouse for a year, or that your spouse treated you cruelly, or that your spouse had sex with someone else.

==The grounds for divorce==

Under the federal ''[[Divorce Act]]'' there is really only one reason why you can apply for a divorce order, ''marriage breakdown''. Under s. 8 of the act, there are three reasons why marriage breakdown may have occurred:

#the intentional separation of the spouses for at least one year;
#the adultery of a spouse; and,
#one spouse's treatment of the other with such mental or physical cruelty that it is impossible to continue the marriage.

In Canada, all divorces proceed on a no-fault basis, regardless of the ground of divorce relied upon. ''No-fault'', in this context, means that the reasons for marriage breakdown have nothing at all to do with the court's consideration of issues like custody and support. No matter how upset someone is by a spouse's misbehaviour, it will have no impact on how the legal issues are addressed.

Most divorces are based on separation. The only advantage of seeking a divorce based on cruelty or adultery is that the divorce is available relatively quickly; you needn't wait for a year's worth of separation to pass before you are eligible for the order. However, while you are eligible to begin divorce proceedings as soon as you learn of the adultery or experience the cruelty, you must be able to prove that the other spouse committed the wrongful behaviour you allege.

As you can imagine, few people are prepared to admit that they committed adultery or battered their spouse, and as a result divorces based on these grounds rarely proceed smoothly. In fact, where a court action has dragged on long enough so that more than a year has passed since the parties separated before the matter finally comes to court, some judges will refuse to hear any evidence of the wrongful behaviour and will grant the divorce instead on the basis of the parties' separation.

===Separation===

To obtain a divorce based on separation for a period of at least one year, you and your spouse must have lived separate and apart for that year. The period of living separate and apart can pass while living under the same roof, however the marital qualities of your relationship with your spouse must have ended.

The ''Divorce Act'' provides that a couple can attempt to reconcile and resume married life for up to 90 days during this one-year period. If the couple live together for a total period of more than 90 days with the intention of getting back together, the clock resets and a new one-year period will not start running until after the couple separates again.

===Adultery===

A spouse who is claiming that the other spouse is guilty of adultery must prove this claim in court. Before the court will pronounce the order for divorce, the court must also be satisfied that the party making the claim has not ''condoned'' the adultery or ''connived'' to effect the adultery. If the court is not satisfied, it will not grant the divorce.

Proof of adultery normally consists of an affidavit from either your spouse or the person with whom your spouse committed the adulterous act, admitting to the adultery. You cannot seek a divorce based on your own adulterous conduct.

Many people will have seen the movie "Intolerable Cruelty," which lays a great deal of emphasis on the punitive consequences of adultery, and suggests that spouses caught with their pants down are going to lose everything they have. That might be true in the US, but it certainly isn't true in Canada. In Canada, there are no consequences for marital offences of that nature: you won't lose your house, you won't lose the children, and you won't find yourself living in a cardboard box. Adultery, while relevant as a ground of divorce, plays no role in the court's determination of these other issues.

===Cruelty===

A spouse who claims that the other spouse is guilty of cruelty must prove his or her claim in court. Cruelty can consist of physical abuse or mental abuse, and may also give rise to a claim for an award of damages as a result of the cruelty. Before the court will pronounce the divorce order, it must be satisfied that the party making the claim has not ''condoned'' the cruelty.

Proof of cruelty normally consists of a medical, psychological or psychiatric report, or, in some circumstances, a simple letter from a treating professional describing the abuse.

===Conspiracy, connivance and condonation===

If a court finds that there has been conspiracy, connivance, or condonation in the application for the divorce order, the court will not grant the order. The point of this is to ensure that a couple are not attempting to escape the requirements of the ''Divorce Act'' and cheat the court to get a quick divorce.

If there has been ''condonation'', the marital offence used to found the divorce claim, adultery or cruelty, has been forgiven. If the act has been forgiven, the court cannot pronounce a divorce order since the marital relationship hasn't broken down.

''Conspiracy'' and ''connivance'' are both attempts to cheat the court. A relationship must have legitimately broken down before the court will officially dissolve it; anything else would be a fraud upon the court. ''Conspiracy'' means that the spouses have worked together to achieve the wrongful act providing the ground for divorce. This could mean, for example, an agreement between the spouses for one of them to have sex with someone else in order to claim adultery as a ground of divorce. ''Connivance'' means to arrange for the wrongful act to occur. For example, this could include one spouse arranging for the other to be seduced by someone else in order to claim adultery as a ground of divorce.

===Child support===

The court is required, under s. 11(1)(b) of the ''Divorce Act'', to satisfy itself that "reasonable arrangements" have been made for the support of the children before it can grant an order for divorce. As you might expect, a ''reasonable arrangement'' usually means that child support is being paid according to the [[Child Support Guidelines]]. If you have children, you will have to prove that the children are being provided for as the Guidelines require before you can get a divorce. Remember that under the Guidelines, the table amount of child support payable for incomes of less than $10,800 per year is zero.

The only possible exception to this rule would be if the parent to whom child support is payable cannot be found, and the child support payments therefore cannot be paid. In such circumstances the court may make a divorce order that doesn't refer to child support, or it may make an order that merely refers to the payor's obligation to pay child support without fixing an amount payable.

==The divorce order==

In order to get a divorce order, the court must be satisfied that:

*the marriage legally exists,
*at least one of the parties has been ordinarily resident in British Columbia for at least one year before the proceeding began, or one of the parties lived somewhere in the last year that would not permit the divorce because the marriage was not recognized there,
*the ground on which marriage breakdown in claimed has been proven, and,
*if there are children, an adequate amount of child support is being paid.

It is possible to oppose an application for a divorce order. Practically speaking, however, by the time the application gets before a judge, the responding party has usually come to realize that a divorce is inevitable. If the court is satisfied that the applicant is entitled to his or her order because the grounds for the divorce have been proven, the divorce is usually granted despite any objections by the other spouse.

===Corollary relief===

An order for divorce can be made on its own or together with ''corollary relief''. Typical orders for corollary relief include orders about the care of children, child support, and spousal support.

Divorce orders are usually made after all of the corollary issues, if any, have been dealt with, either as a result of a trial or a settlement reached following negotiations. The court will be reluctant to make a divorce order until all of the legal issues have been addressed.

===The appeal period===

Orders for divorce usually contain a term that "this order shall not take effect until the 31st day after its pronouncement." This is to allow the appeal period to expire. Once those 31 days have passed, however, the parties are officially divorced and are free to remarry if they wish.

It is possible to abridge this appeal period, if the divorce must take effect sooner for some urgent reason such as remarriage. If this is the case, you should advise the court of the need for haste, and a waiver of appeal will have to be filed.

===Certificate of divorce===

Once the appeal period has expired, either party may apply to the court, for a small filing fee, for a Certificate of Divorce. This is, strictly speaking, unnecessary, as the order is itself sufficient proof of divorce. Nevertheless, people often want this certificate to obtain a sense of closure, or because they expect to marry within the next couple of years, or because they may wish to prove they are divorced without having to disclose the other terms of their divorce order. Most family law lawyers take care to prepare Certificates of Divorce nicely in a format suitable for framing. For an overview of this process, go to the How Do I? section of this resource and read [[How Do I Get my Certificate of Divorce%3F]] It's located under Marriage, Separation & Divorce.

==Foreign divorce orders==

Section 22(1) of the ''Divorce Act'' deals with the effect in Canada of divorces obtained outside Canada. In a nutshell, if a divorce was properly granted by the foreign country the parties will also be considered to be divorced here, without the need to obtain a Canadian divorce order.

Of course, there is a small catch. Either spouse must have been "ordinarily resident" in the country in which the divorce was obtained for at least one year before the divorce proceedings started. In other words, if you've lived in Sri Lanka for less than a year before you started your application for divorce, your divorce may not be recognized in Canada even though it's perfectly good in Sri Lanka. As long as you had lived in Sri Lanka for more than one year before you started your application, your divorce there will be valid in Canada.

Even if a foreign divorce isn't good under Canadian law, everyone will usually accept the fact that the spouse is divorced. Whether the divorce meets Canadian requirements will only ever become an issue if one of the spouses later claims that the divorce is not valid. This can have some fairly serious consequences, mostly involving the division of property and pensions. You can find more information about the property entitlements of married spouses in the chapter [[Property & Debt in Family Law Matters|Property & Debt]], in the section [[Dividing Property & Debt in Family Law Matters|Dividing Property & Debt]].

==The do-it-yourself divorce==

The only way to obtain an order for divorce is by starting a court proceeding; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the ''desk order divorce process'', allows you to obtain a final order for divorce without ever having to appear in court, and the order can deal with all of the issues between you and your spouse, from divorce to the division of property to child support.

You can get your divorce yourself using the desk order divorce process, without having to retain a lawyer. While some of the court forms can be a bit daunting, there are plenty of resources, such as this website, that can help you unravel the mysteries and complete the process on your own.

Generally speaking, a desk order divorce is appropriate in two situations:

#when the only issue between you and your spouse is getting a divorce; or,
#when you have other issues, but those have been settled, either through a separation agreement or an agreement about the terms of a consent order.

In the first case, a desk order application will be for a divorce alone. In the second case, a desk order application will be an application for a divorce plus ''corollary relief'', that is, orders apart from the divorce order itself, such as orders dealing with care of children, support, or the division of assets.

Most court proceedings go like this: the claimant files a Notice of Family Claim and serves it on the respondent; the respondent then files a Response to Family Claim and sometimes a Counterclaim. If the respondent fails to file a Response to Family Claim, the claimant's court proceeding is said to be ''uncontested''. This means that the respondent is assumed to either agree with the relief sought by the claimant or to have chosen not to defend the claim. In such circumstances, the claimant is free to seek a ''default judgment'' against the respondent.

A desk order divorce application is essentially an application for a default judgment, whether the claimant's court proceeding is for a divorce order alone or for a divorce order with corollary relief, and is governed by Rule 10-10 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules].

For a brief summary of this process, go to the ''How Do I?'' section of this resource and read [[How Do I Get Divorced?]] It's located under ''Marriage, Separation & Divorce''.

===Choosing between the sole application process and the joint application process===

There are two types of desk order divorce actions:

#the sole application process, in which only one spouse is responsible for ushering the process through; and,
#the joint application process, in which the spouses work together to get the job done.

There are a few important differences between sole applications and joint applications.

*Joint applications are quicker and cheaper, but the spouses will have to cooperate with each other. In a sole application, no cooperation is required.
*A sole application takes a little longer since the person bringing the action has to serve the other spouse with the Notice of Family Claim and wait 40 days before proceeding. In a joint application, service is not necessary and you can apply for the divorce order right away.
*In a sole application, the spouses are called the claimant and respondent. In a joint application, the spouses are called claimant 1 and claimant 2.
*In a joint application, both spouses must sign the Notice of Family Claim, and both must execute an affidavit for the application for the divorce order.

===The sole divorce application===

These instructions are for the sole divorce application process:

'''Step One'''

<blockquote>Prepare your Notice of Family Claim. Make three copies of the original.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring the original Notice of Family Claim and the three copies you have made of it. Also bring the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the courthouse. File all of these materials and pay the $210 court fee. The court will stamp the action number and the court seal on all copies of your Notice of Family Claim, keep the original, and give you back the three duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>Serve your ex with your Notice of Family Claim. You cannot serve your ex yourself; you must arrange for someone else to do it. Give the person who will be your process server two copies of your Notice of Family Claim, along with a photograph of your ex. The process server will serve one copy of the materials on your ex, and will use the photograph and the remaining copy in his or her Affidavit of Personal Service to prove that your ex was served.</blockquote>

'''Step Four'''

<blockquote>Once your ex is served, wait 40 days. Technically, you only need to wait 31 days from the date of service, but it doesn't hurt to add a few days just to be sure. If your ex files a Response to Family Claim or Counterclaim in this period, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.</blockquote>

'''Step Five'''

<blockquote>Prepare your Requisition asking the court for the divorce order, your Divorce Affidavit in support of the application, a draft of the order you want the court to make, and the Registrar's Certificate. If you have children, you will also have to prepare a Child Support Affidavit, which sets out the details of your income and your spouse's income and the terms on which child support will (or won't) be paid.</blockquote>

'''Step Six'''

<blockquote>Go to the court registry you filed your materials at, and file your Requisition, your Affidavit, your Child Support Affidavit if required, your Registrar's Certificate, your draft order, and your process server's Affidavit of Personal Service. Pay the $80 court fee.</blockquote>

'''Step Seven'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Eight'''

<blockquote>Start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to get the entered order, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Nine'''

<blockquote>Wait 32 days from the date the divorce order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Ten'''

<blockquote>Prepare your draft Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

===The joint divorce application===

The joint divorce application process is almost exactly the same as the sole divorce application process, except that some of the forms are different, service is not required, and the length of time it takes to get a divorce is about four to eight weeks in total.

These are the main differences between the joint application process and the sole application process:

*The parties are known as claimant 1 and claimant 2.
*A special form, Notice of Family Claim is required.
*Both parties sign the Notice of Family Claim.
*The Notice of Family Claim does not need to be served on anyone, and there is no waiting period that must pass before the application for the divorce order can be made.
*Both parties must swear an affidavit in support of the application for the divorce order.
*All of the documents can be filed at once, although at least one of the affidavits in support of the application must be sworn after everything else is filed, even if only by a few minutes.

If either party withdraws from the joint application process before the divorce order is made, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.

These instructions are for the joint divorce application process:

'''Step One'''

<blockquote>Prepare a joint Notice of Family Claim. Prepare and execute one Divorce Affidavit in support of the application; prepare your blank Registrar's Certificate; prepare and complete your Requisition to apply for the divorce order; and, prepare your draft order. Make two copies of everything. Prepare but do not execute the other Divorce Affidavit.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring all the documents listed in Step One and the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the family and divorce counter. File all of these materials (except the unexecuted affidavit) and pay the $290 court fee. The court will stamp the action number and the court seal on all copies of your joint Notice of Family Claim, keep the original, and give you back the two duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>While you're at the registry counter, execute the remaining affidavit in support of the application for divorce, and pay the $40 court fee.</blockquote>

'''Step Four'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Five'''

<blockquote>Once four weeks have passed, start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to pick the entered order up, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Six'''

<blockquote>Wait 32 days from the date the order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Seven'''

<blockquote>Prepare your Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

With the exception of the special form, Notice of Family Claim, all of the forms used in the joint process are the same as the sole process, except that the parties aren't called claimant and respondent, they're called claimant 1 and claimant 2.

===Free services===

[http://accessprobono.ca/ Access Pro Bono] offers free meetings with lawyers who can review your forms with you before you file them in court. Although the lawyers available through this program are not likely to prepare your documents, they will give them a check to make sure that the registry will accept them.

The [http://www.cle.bc.ca/ British Columbia Continuing Legal Education Society] has published an excellent guide to the desk order divorce process called the ''Desk Order Divorce Manual'', which has samples of the different clauses you may need to complete your court forms. This book is available at your local courthouse library.

The [http://www.familylaw.lss.bc.ca/guides/divorce/ Legal Services Society of BC] also has an excellent online step-by-step guide to the divorce process.

===Services that are not free===

====Lawyers====

You're usually best off if you hire a lawyer to handle your divorce for you, as your lawyer will be familiar with the nuances and complications of the desk order divorce process and can give you expert advice about the short- and long-term advantages and disadvantages of the arrangement you've worked out with your spouse. This can be critical where the terms or circumstances of your divorce are unusual or complicated.

Lawyers, however, come at a cost. You should expect that you will be charged fees of anywhere between $500 and $2,000 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.

====Commercial services====

A local company called [http://www.self-counsel.com/ Self-Counsel Press] publishes a kit for the desk order divorce process. The kit, which costs something like $25 to $35, contains all the forms necessary to apply for a desk order divorce, plus instructions on how to make the application. Make sure that the kit you buy has forms that are current to the changes made on 18 March 2013.

There are a number of commercial services available online that will prepare all of the necessary documents for you, including:

*[http://www.divorceoptions.ca www.divorceoptions.ca]
*[http://www.untietheknot.ca www.untietheknot.ca]
*[http://www.britishcolumbiadivorce.ca www.britishcolumbiadivorce.ca]

If I understand things correctly, untietheknot.ca will also file your documents in court for you. A Google search for the phrase "<tt>desk order divorce BC</tt>" should provide you with a few other options, but whatever you do, make sure you're using a service that offers the forms required for a divorce in British Columbia!

===What happens if a response or counterclaim are filed?===

The do-it-yourself divorce process is based on the idea that either everyone agrees to get divorced or no one is going to object to the divorce. The process will go off the rails if:

*'''Sole application:''' the respondent files a Response to Family Claim or a Counterclaim; or,
*'''Joint application:''' a claimant withdraws from the process and files a Response to Family Claim or a Counterclaim.

In either situation, the divorce action will cease to qualify as an ''undefended family law case'' within the meaning of Rule 1-1(1) and cannot proceed as a desk order. The divorce action will continue like any other contested family law case and proceed to trial if a settlement cannot be reached.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Resources===

*[http://www.divorceoptions.ca DivorceOptions.ca]
*[http://www.untietheknot.ca Untie The Knot Divorce Service]
*[http://www.britishcolumbiadivorce.ca Canadian Divorce Online]

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Legal Services Society’s Family Law Website: Divorce]

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:Marriage, Separation & Divorce]]
[[Category:JP Boyd on Family Law]]

Divorce and the Law on Getting Divorced

2017-08-02T22:17:22Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]] and [[Thomas Wallwork]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Divorce]
}}Divorce is the legal termination of a marriage by an order of the court. Without this order, a couple will remain married to each other no matter how long they've been separated. Although a divorce order represents the formal conclusion of a marriage, where children are involved or one spouse is financially dependent on the other, issues about the payment of support and the care of the children will continue.

This section provides an overview of the grounds for divorce, and discusses the nature of a divorce order and the effect of foreign divorce orders in Canada. It also reviews the do-it-yourself divorce process, and the court forms used in that process, in enough detail that you can get your own divorce without having to hire a lawyer.

The criteria that must be met to obtain an annulment ― which is different than a divorce order and isn't nearly as simple and straightforward as most people think ― are discussed in the chapter ''[[Family Relationships]]'' within the section [[Marriage & Married Spouses]].

==Preconditions for applying for a divorce in BC==

If you want to get a divorce in BC, you must first satisfy three conditions:

#You must be legally married. If your marriage was legally valid in the place you got married, it counts as a legal marriage in BC. To prove you were legally married you will need to provide a marriage certificate issued in the country where you were married. If you can't get a marriage certificate, you'll need to find witnesses who saw you get married. These witnesses will need to either testify or swear an affidavit saying that they saw you get married.
#Generally, you or your spouse must live in BC and have lived here for at least a year. The one exception to this rule is if you were married in BC, and you lived somewhere in the last year that wouldn't let you get divorced. If you take advantage of this exception, you can only get a divorce in BC. Claims about children, property division, and child and spousal support must be dealt with where you and your spouse live.
#You must prove that you have been separated from your spouse for a year, or that your spouse treated you cruelly, or that your spouse had sex with someone else.

==The grounds for divorce==

Under the federal ''[[Divorce Act]]'' there is really only one reason why you can apply for a divorce order, ''marriage breakdown''. Under s. 8 of the act, there are three reasons why marriage breakdown may have occurred:

#the intentional separation of the spouses for at least one year;
#the adultery of a spouse; and,
#one spouse's treatment of the other with such mental or physical cruelty that it is impossible to continue the marriage.

In Canada, all divorces proceed on a no-fault basis, regardless of the ground of divorce relied upon. ''No-fault'', in this context, means that the reasons for marriage breakdown have nothing at all to do with the court's consideration of issues like custody and support. No matter how upset someone is by a spouse's misbehaviour, it will have no impact on how the legal issues are addressed.

Most divorces are based on separation. The only advantage of seeking a divorce based on cruelty or adultery is that the divorce is available relatively quickly; you needn't wait for a year's worth of separation to pass before you are eligible for the order. However, while you are eligible to begin divorce proceedings as soon as you learn of the adultery or experience the cruelty, you must be able to prove that the other spouse committed the wrongful behaviour you allege.

As you can imagine, few people are prepared to admit that they committed adultery or battered their spouse, and as a result divorces based on these grounds rarely proceed smoothly. In fact, where a court action has dragged on long enough so that more than a year has passed since the parties separated before the matter finally comes to court, some judges will refuse to hear any evidence of the wrongful behaviour and will grant the divorce instead on the basis of the parties' separation.

===Separation===

To obtain a divorce based on separation for a period of at least one year, you and your spouse must have lived separate and apart for that year. The period of living separate and apart can pass while living under the same roof, however the marital qualities of your relationship with your spouse must have ended.

The ''Divorce Act'' provides that a couple can attempt to reconcile and resume married life for up to 90 days during this one-year period. If the couple live together for a total period of more than 90 days with the intention of getting back together, the clock resets and a new one-year period will not start running until after the couple separates again.

===Adultery===

A spouse who is claiming that the other spouse is guilty of adultery must prove this claim in court. Before the court will pronounce the order for divorce, the court must also be satisfied that the party making the claim has not ''condoned'' the adultery or ''connived'' to effect the adultery. If the court is not satisfied, it will not grant the divorce.

Proof of adultery normally consists of an affidavit from either your spouse or the person with whom your spouse committed the adulterous act, admitting to the adultery. You cannot seek a divorce based on your own adulterous conduct.

Many people will have seen the movie ''Intolerable Cruelty'', which lays a great deal of emphasis on the punitive consequences of adultery, and suggests that spouses caught with their pants down are going to lose everything they have. That might be true in the US, but it certainly isn't true in Canada. In Canada, there are no consequences for marital offences of that nature: you won't lose your house, you won't lose the children, and you won't find yourself living in a cardboard box. Adultery, while relevant as a ground of divorce, plays no role in the court's determination of these other issues.

===Cruelty===

A spouse who claims that the other spouse is guilty of cruelty must prove their claim in court. Cruelty can consist of physical abuse or mental abuse, and may also give rise to a claim for an award of damages as a result of the cruelty. Before the court will pronounce the divorce order, it must be satisfied that the party making the claim has not ''condoned'' the cruelty.

Proof of cruelty normally consists of a medical, psychological or psychiatric report, or, in some circumstances, a simple letter from a treating professional describing the abuse.

===Conspiracy, connivance and condonation===

If a court finds that there has been conspiracy, connivance, or condonation in the application for the divorce order, the court will not grant the order. The point of this is to ensure that a couple are not attempting to escape the requirements of the ''Divorce Act'' and cheat the court to get a quick divorce.

If there has been ''condonation'', the marital offence used to found the divorce claim, adultery or cruelty, has been forgiven. If the act has been forgiven, the court cannot pronounce a divorce order since the marital relationship hasn't broken down.

''Conspiracy'' and ''connivance'' are both attempts to cheat the court. A relationship must have legitimately broken down before the court will officially dissolve it; anything else would be a fraud upon the court. Conspiracy means that the spouses have worked together to achieve the wrongful act providing the ground for divorce. This could mean, for example, an agreement between the spouses for one of them to have sex with someone else in order to claim adultery as a ground of divorce. ''Connivance'' means to arrange for the wrongful act to occur. For example, this could include one spouse arranging for the other to be seduced by someone else in order to claim adultery as a ground of divorce.

===Child support===

The court is required, under s. 11(1)(b) of the ''Divorce Act'', to satisfy itself that "reasonable arrangements" have been made for the support of the children before it can grant an order for divorce. As you might expect, a reasonable arrangement usually means that child support is being paid according to the [[Child Support Guidelines]]. If you have children, you will have to prove that the children are being provided for as the Guidelines require before you can get a divorce. Remember that under the Guidelines, the table amount of child support payable for incomes of less than $10,800 per year is zero.

The only possible exception to this rule would be if the parent to whom child support is payable cannot be found, and the child support payments therefore cannot be paid. In such circumstances the court may make a divorce order that doesn't refer to child support, or it may make an order that merely refers to the payor's obligation to pay child support without fixing an amount payable.

==The divorce order==

In order to get a divorce order, the court must be satisfied that:

*the marriage legally exists,
*at least one of the parties has been ordinarily resident in British Columbia for at least one year before the proceeding began, or one of the parties lived somewhere in the last year that would not permit the divorce because the marriage was not recognized there,
*the ground on which marriage breakdown in claimed has been proven, and,
*if there are children, an adequate amount of child support is being paid.

It is possible to oppose an application for a divorce order. Practically speaking, however, by the time the application gets before a judge, the responding party has usually come to realize that a divorce is inevitable. If the court is satisfied that the applicant is entitled to their order because the grounds for the divorce have been proven, the divorce is usually granted despite any objections by the other spouse.

===Corollary relief===

An order for divorce can be made on its own or together with ''corollary relief''. Typical orders for corollary relief include orders about the care of children, child support, and spousal support.

Divorce orders are usually made after all of the corollary issues, if any, have been dealt with, either as a result of a trial or a settlement reached following negotiations. The court will be reluctant to make a divorce order until all of the legal issues have been addressed.

===The appeal period===

Orders for divorce usually contain a term that "this order shall not take effect until the 31st day after its pronouncement." This is to allow the appeal period to expire. Once those 31 days have passed, however, the parties are officially divorced and are free to remarry if they wish.

It is possible to abridge this appeal period, if the divorce must take effect sooner for some urgent reason such as remarriage. If this is the case, you should advise the court of the need for haste, and a waiver of appeal will have to be filed.

===Certificate of divorce===

Once the appeal period has expired, either party may apply to the court, for a small filing fee, for a Certificate of Divorce. This is, strictly speaking, unnecessary, as the order is itself sufficient proof of divorce. Nevertheless, people often want this certificate to obtain a sense of closure, or because they expect to marry within the next couple of years, or because they may wish to prove they are divorced without having to disclose the other terms of their divorce order. Most family law lawyers take care to prepare Certificates of Divorce nicely in a format suitable for framing. For an overview of this process, go to the How Do I? section of this resource and read [[How Do I Get my Certificate of Divorce%3F]] It's located under Marriage, Separation & Divorce.

==Foreign divorce orders==

Section 22(1) of the ''Divorce Act'' deals with the effect in Canada of divorces obtained outside Canada. In a nutshell, if a divorce was properly granted by the foreign country the parties will also be considered to be divorced here, without the need to obtain a Canadian divorce order.

Of course, there is a small catch. Either spouse must have been ''ordinarily resident'' in the country in which the divorce was obtained for at least one year before the divorce proceedings started. In other words, if you've lived in Sri Lanka for less than a year before you started your application for divorce, your divorce may not be recognized in Canada even though it's perfectly good in Sri Lanka. As long as you had lived in Sri Lanka for more than one year before you started your application, your divorce there will be valid in Canada.

Even if a foreign divorce isn't good under Canadian law, everyone will usually accept the fact that the spouse is divorced. Whether the divorce meets Canadian requirements will only ever become an issue if one of the spouses later claims that the divorce is not valid. This can have some fairly serious consequences, mostly involving the division of property and pensions. You can find more information about the property entitlements of married spouses in the chapter [[Property & Debt in Family Law Matters|Property & Debt]], in the section [[Dividing Property & Debt in Family Law Matters|Dividing Property & Debt]].

==The do-it-yourself divorce==

The only way to obtain an order for divorce is by starting a court proceeding; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the ''desk order divorce process'', allows you to obtain a final order for divorce without ever having to appear in court, and the order can deal with all of the issues between you and your spouse, from divorce to the division of property to child support.

You can get your divorce yourself using the desk order divorce process, without having to retain a lawyer. While some of the court forms can be a bit daunting, there are plenty of resources, such as this one, that can help you unravel the mysteries and complete the process on your own.

Generally speaking, a desk order divorce is appropriate in two situations:

#when the only issue between you and your spouse is getting a divorce; or,
#when you have other issues, but those have been settled, either through a separation agreement or an agreement about the terms of a consent order.

In the first case, a desk order application will be for a divorce alone. In the second case, a desk order application will be an application for a divorce plus ''corollary relief'', that is, orders apart from the divorce order itself, such as orders dealing with care of children, support, or the division of assets.

Most court proceedings go like this: the claimant files a Notice of Family Claim and serves it on the respondent; the respondent then files a Response to Family Claim and sometimes a Counterclaim. If the respondent fails to file a Response to Family Claim, the claimant's court proceeding is said to be ''uncontested''. This means that the respondent is assumed to either agree with the relief sought by the claimant or to have chosen not to defend the claim. In such circumstances, the claimant is free to seek a ''default judgment'' against the respondent.

A desk order divorce application is essentially an application for a default judgment, whether the claimant's court proceeding is for a divorce order alone or for a divorce order with corollary relief, and is governed by Rule 10-10 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules].

For a brief summary of this process, go to the ''How Do I?'' section of this resource and read [[How Do I Get Divorced?]] It's located under Marriage, Separation & Divorce.

===Choosing between the sole application process and the joint application process===

There are two types of desk order divorce actions:

#the sole application process, in which only one spouse is responsible for ushering the process through; and,
#the joint application process, in which the spouses work together to get the job done.

There are a few important differences between sole applications and joint applications.

*Joint applications are quicker and cheaper, but the spouses will have to cooperate with each other. In a sole application, no cooperation is required.
*A sole application takes a little longer since the person bringing the action has to serve the other spouse with the Notice of Family Claim and wait 40 days before proceeding. In a joint application, service is not necessary and you can apply for the divorce order right away.
*In a sole application, the spouses are called the claimant and respondent. In a joint application, the spouses are called claimant 1 and claimant 2.
*In a joint application, both spouses must sign the Notice of Family Claim, and both must execute an affidavit for the application for the divorce order.

===The sole divorce application===

These instructions are for the sole divorce application process:

'''Step One'''

<blockquote>Prepare your Notice of Family Claim. Make three copies of the original.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring the original Notice of Family Claim and the three copies you have made of it. Also bring the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the courthouse. File all of these materials and pay the court fee which is currently $210. The court will stamp the action number and the court seal on all copies of your Notice of Family Claim, keep the original, and give you back the three duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>Serve your ex with your Notice of Family Claim. You cannot serve your ex yourself; you must arrange for someone else to do it. Give the person who will be your process server two copies of your Notice of Family Claim, along with a photograph of your ex. The process server will serve one copy of the materials on your ex, and will use the photograph and the remaining copy in their Affidavit of Personal Service to prove that your ex was served.</blockquote>

'''Step Four'''

<blockquote>Once your ex is served, wait 40 days. Technically, you only need to wait 31 days from the date of service, but it doesn't hurt to add a few days just to be sure. If your ex files a Response to Family Claim or Counterclaim in this period, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.</blockquote>

'''Step Five'''

<blockquote>Prepare your Requisition asking the court for the divorce order, your Divorce Affidavit in support of the application, a draft of the order you want the court to make, and the Registrar's Certificate. If you have children, you will also have to prepare a Child Support Affidavit, which sets out the details of your income and your spouse's income and the terms on which child support will (or won't) be paid.</blockquote>

'''Step Six'''

<blockquote>Go to the court registry you filed your materials at, and file your Requisition, your Affidavit, your Child Support Affidavit if required, your Registrar's Certificate, your draft order, and your process server's Affidavit of Personal Service. Pay the court fee which is currently $80.</blockquote>

'''Step Seven'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Eight'''

<blockquote>Start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to get the entered order, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Nine'''

<blockquote>Wait 32 days from the date the divorce order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Ten'''

<blockquote>Prepare your draft Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee (at this time), and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

===The joint divorce application===

The joint divorce application process is almost exactly the same as the sole divorce application process, except that some of the forms are different, service is not required, and the length of time it takes to get a divorce is about four to eight weeks in total.

These are the main differences between the joint application process and the sole application process:

*The parties are known as claimant 1 and claimant 2.
*A special form, Notice of Family Claim is required.
*Both parties sign the Notice of Family Claim.
*The Notice of Family Claim does not need to be served on anyone, and there is no waiting period that must pass before the application for the divorce order can be made.
*Both parties must swear an affidavit in support of the application for the divorce order.
*All of the documents can be filed at once, although at least one of the affidavits in support of the application must be sworn after everything else is filed, even if only by a few minutes.

If either party withdraws from the joint application process before the divorce order is made, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.

These instructions are for the joint divorce application process:

'''Step One'''

<blockquote>Prepare a joint Notice of Family Claim. Prepare and execute one Divorce Affidavit in support of the application; prepare your blank Registrar's Certificate; prepare and complete your Requisition to apply for the divorce order; and, prepare your draft order. Make two copies of everything. Prepare but do not execute the other Divorce Affidavit.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring all the documents listed in Step One and the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the family and divorce counter. File all of these materials (except the unexecuted affidavit) and pay the court fee (currently $290). The court will stamp the action number and the court seal on all copies of your joint Notice of Family Claim, keep the original, and give you back the two duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>While you're at the registry counter, execute the remaining affidavit in support of the application for divorce, and pay the court fee (currently $40).</blockquote>

'''Step Four'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Five'''

<blockquote>Once four weeks have passed, start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to pick the entered order up, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Six'''

<blockquote>Wait 32 days from the date the order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Seven'''

<blockquote>Prepare your Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the court fee (currently $40), and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

With the exception of the special form, Notice of Family Claim, all of the forms used in the joint process are the same as the sole process, except that the parties aren't called claimant and respondent, they're called claimant 1 and claimant 2.

===Free services===

[http://accessprobono.ca/ Access Pro Bono] offers free meetings with lawyers who can review your forms with you before you file them in court. Although the lawyers available through this program are not likely to prepare your documents, they will give them a check to make sure that the registry will accept them.

The [http://www.cle.bc.ca/ British Columbia Continuing Legal Education Society] has published an excellent guide to the desk order divorce process called the ''Desk Order Divorce Manual'', which has samples of the different clauses you may need to complete your court forms. This book is available at your local courthouse library.

The [http://www.familylaw.lss.bc.ca/guides/divorce/ Legal Services Society of BC] also has an excellent online step-by-step guide to the divorce process on its family law web site.

===Services that are not free===

====Lawyers====

You're usually best off if you hire a lawyer to handle your divorce for you, as your lawyer will be familiar with the nuances and complications of the desk order divorce process and can give you expert advice about the short- and long-term advantages and disadvantages of the arrangement you've worked out with your spouse. This can be critical where the terms or circumstances of your divorce are unusual or complicated.

Lawyers, however, come at a cost. You should expect that you will be charged fees of anywhere between $500 and $2,000 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.

====Commercial services====

A local company called [http://www.self-counsel.com/ Self-Counsel Press] publishes a kit for the desk order divorce process. The kit, which costs something like $25 to $35, contains all the forms necessary to apply for a desk order divorce, plus instructions on how to make the application. Make sure that the kit you buy has forms that are current to the changes made on 18 March 2013.

There are a number of commercial services available online that will prepare all of the necessary documents for you, including:

*[http://www.divorceoptions.ca www.divorceoptions.ca]
*[http://www.untietheknot.ca www.untietheknot.ca]
*[http://www.britishcolumbiadivorce.ca www.britishcolumbiadivorce.ca]

If I understand things correctly, untietheknot.ca will also file your documents in court for you. A Google search for the phrase "<tt>desk order divorce BC</tt>" should provide you with a few other options, but whatever you do, make sure you're using a service that offers the forms required for a divorce in British Columbia!

===What happens if a response or counterclaim are filed?===

The do-it-yourself divorce process is based on the idea that either everyone agrees to get divorced or no one is going to object to the divorce. The process will go off the rails if:

*'''Sole application:''' the respondent files a Response to Family Claim or a Counterclaim; or,
*'''Joint application:''' a claimant withdraws from the process and files a Response to Family Claim or a Counterclaim.

In either situation, the divorce action will cease to qualify as an ''undefended family law case'' within the meaning of Rule 1-1(1) and cannot proceed as a desk order. The divorce action will continue like any other contested family law case and proceed to trial if a settlement cannot be reached.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Resources===

*[http://www.divorceoptions.ca DivorceOptions.ca]
*[http://www.untietheknot.ca Untie The Knot Divorce Service]
*[http://www.britishcolumbiadivorce.ca Canadian Divorce Online]

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Legal Services Society’s Family Law Website: Divorce]

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:Marriage, Separation & Divorce]]
[[Category:JP Boyd on Family Law]]

Separating Emotionally

2017-08-02T21:50:51Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]] and [[Thomas Wallwork]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section discussed the law about separation. This section talks about the emotional dimensions of separation. The laws and the courts only deal with a narrow slice of all the things that go on when a relationship ends and often ignore, because they must, the larger emotional and psychological issues.

These issues, however, influence a couple's ability to work together after separation and often play a huge role in determining how a separating couple will go about resolving their legal problems. An understanding of the emotions involved in separation can help to reduce conflict and the cost of resolving the legal issues involved in separation.

This section applies to both married and unmarried couples. It provides an introduction to separating emotionally, looks at the grieving process that accompanies the end of a long-term relationship, and discusses how the emotional aspects of separation can impact on the resolution of the legal issues a couple might have to deal with.

==Introduction==

Ending a long-term relationship, whether married or unmarried, is not just a matter of packing your bags and walking out the front door. Separation stirs up incredibly powerful emotions that can take a surprisingly long time to work through; many counsellors liken these emotions to the grieving process that follows the death of a loved one. Chief among these emotions are love, anger, remorse, and sadness, and separating couples often find themselves experiencing these emotions in a very intense manner and cycling through them over and over.

These emotions often wind up clouding a person's judgment. You can find yourself doing things and saying things you never thought you would, or doing things you promised you'd never do again. You can find yourself looking at your partner and wondering who the hell this person really is, and how can he or she be so different from the person you were together with for so long. Unrecognized and unmanaged emotions can take over the emotional and legal processes of separation like a runaway train and take you down tracks you never anticipated.

The emotions involved in separation are normal. Everyone experiences them, although we each process these emotions in our own way. From a lawyer's perspective, the key problems that must be processed in the midst of these distorted and confused feelings are:

#settling the legal issues that crop up at the end of a relationship,
#obtaining reasonable instructions from the client,
#separating anger from the negotiation process,
#separating anger from the litigation process, and
#ensuring that the conflict doesn't spill out onto the children.

The vast majority of couples can resolve their issues through negotiation or mediation, no matter how angry they are with one another. Where a couple simply cannot separate the emotional baggage of separation from the resolution of the legal issues that come at the end of their relationship, litigation may be inevitable.

Many studies have shown that mediation and collaborative settlement processes produce agreements that are better for both parties and better for the children, and that last longer than the results of litigation. Mediation and collaborative processes can help a couple to work through their individual emotional issues and can produce an agreement that isn't so much a legal contract as it is a moral contract. Parents especially tend to deal with each other, and with their children, with a lot less rancour following a mediated or collaborative resolution of their problems.

Litigation is sometimes necessary, even when a couple is capable of a less antagonistic choice: when a party threatens to flee with a child; where there is a history of abuse or where abuse seems imminent; and, where a party is threatening to do something rash with family property. When litigation is provoked by emotions arising from the end of the relationship and isn't really necessary, then you can run into some serious and expensive problems:

*One or both people will adopt an entrenched and unreasonable position about things like the children and other family issues, sometimes a position that they would never have considered taking. Sometimes positions are adopted out of spite or vindictiveness.
*The emotional tension will worsen, particularly when you see things you thought were long buried in the past put into an affidavit. There will be backstabbing, accusations, and wounded feelings.
*There is an increased risk of the children being used to goad the other parent, although sometimes unintentionally.
*There is an increased risk of the alienation or estrangement of a child from a parent, and the permanent impairment of the child's relationship with that parent.
*There will be many interim applications and the litigation may not be settled even with a trial. In circumstances like these, the litigation many never truly end, especially when there are children involved.
*The litigation will cost an enormous amount of money, and you risk losing the equity in the family assets to court fees and legal fees.
*At the end of the day, you risk being permanently unable to communicate effectively with your former partner. This can be a serious problem when children are involved.

As a result of all of this, it can be critical to get a grip on your emotions right out of the starting gate. While all of these emotions are common, natural, and entirely understandable, failing to recognize and manage them can lead to disastrous short- and long-term consequences to your emotional well-being, your relationship with your children, your children's emotional well-being, and your financial situation. If you are having trouble managing your feelings and you have children, see a counsellor as soon as possible.

===Parenting after separation===

When a couple have children, they must accept that they will remain a permanent part of each other's lives, whether they like it or not. A couple may no longer be partners, but they will always be parents. The parental relationship does not end with the romantic relationship.

It is impossible to emphasize enough how important it is to always put the children first. This may sound a bit trite, but putting the children ahead of yourself can be an extremely challenging task when you are also trying to cope with the intense emotions involved in separation. It can be tremendously difficult to refrain from badmouthing your former partner to the children, "forgetting" to drop them off on time, and using them as a weapon.

The [http://www.justicebc.ca/en/fam/help/pas/index.html Parenting After Separation (PAS) program] is available throughout British Columbia. In my view, all couples with children can benefit from this program, no matter how well or poorly you think you and your former partner get along.

The Parenting After Separation program can offer important advice about talking to your children about the separation, talking about your former partner with the children, and talking with your former partner in ways that avoid hurting and wounding and are focused on the children.

Information about parenting after separation, including contact information for the different agencies that offer the PAS program, is available in the [[Children in Family Law Matters|Children]] chapter, in the section [[Parenting After Separation]]. As well, some very good research papers and literature reviews about parenting after separation, the costs of high-conflict separation, and other topics relating to the child's well-being and outcomes following separation can be found at the website of the [http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice]. These papers are of a uniformly high quality and are well worth the read.

===A few notes from JP Boyd===

I am not a psychologist, a psychiatrist or a counsellor. As a result, this section should be read with a grain of salt as it is based on my observations of my clients' experiences and a healthy dose of common sense. For the same reason, this section should not be used as an authority for the propositions it sets out.

There are a ton of resources available to help you cope with the separation process and keep the emotionally harmful aspects of the process away from your children. In addition to public programs, many counsellors specialize in helping people work through the emotional turmoil that often follows the end of a long-term relationship. Since counsellors are unregulated, anyone can hang a shingle saying that they offer counselling services. What you should be looking for are people with the designation of Registered Clinical Counsellor (RCC), Certified Canadian Counsellor (CCC) or Registered Psychologist (RPsych).

*The website [http://www.counsellingbc.com/ counsellingbc.com] offers a list of subscribing counsellors by area of practice.
*The [http://bc-counsellors.org/ BC Association of Clinical Counsellors] also maintains a referral list of its members.
*The [http://www.bcamft.bc.ca/ohana/website/index.cfm?p=95575656796 BC Association for Marriage and Family Therapy] has a referral list and helpful information about how to choose a counsellor.

==The grieving process==

Many counsellors liken the process of emotionally separating from a long-term relationship to the grieving process that happens when a loved one dies. In general, this process can be expected to take one to two years to complete. Dr. Elizabeth Kubler-Ross, in her book ''[http://www.worldcat.org/title/on-death-and-dying/oclc/4238 On Death and Dying]'', describes a five-stage model of grief, and how grief affects our ability to make decisions in each stage.

*'''Shock and denial:''' "This isn't happening to me!" An initial paralysis at hearing the bad news; trying to avoid the inevitable. People usually avoid making decisions or taking action at this point.
*'''Anger:''' "Why is this happening to me?" A frustrated outpouring of bottled-up emotion. Making decisions at this point is difficult because all one's energy gets put into the emotion rather than problem-solving, and the other partner is usually vilified.
*'''Dialogue and bargaining:''' "I promise I'll be a better person if..." Seeking in vain for a way out; seeking paths that might offer a solution. People generally become more willing to explore alternatives.
*'''Depression and detachment:''' "I just don't care anymore." A final realization of the inevitable. It is hard to make reasonable decisions at this stage because of the sense of resignation.
*'''Acceptance:''' "I'm ready for whatever comes." Finally finding the way forward. Decisions are much easier to make because people have found new purpose, having begun to accept the loss.

Dr. Robert Emery agrees that the Kubler-Ross model applies to separating, but he looks at the grief process in a slightly different way. In his book ''[http://www.worldcat.org/title/renegotiating-family-relationships-divorce-child-custody-and-mediation/oclc/30474579&referer=brief_results Renegotiating Family Relationships]'', Dr. Emery describes the grieving process as a cycle of love, anger, and sadness, which gets repeated in varying degrees of intensity as a person works his or her way through the Kubler-Ross stages, from shock and denial through to acceptance of the end of the relationship.

In his excellent book ''[http://www.worldcat.org/title/truth-about-children-and-divorce-dealing-with-the-emotions-so-you-and-your-children-can-thrive/oclc/53485317&referer=brief_results The Truth about Children and Divorce]'', Dr. Emery says this:

<blockquote>"Over time the intensity of the emotions diminishes and people usually find that the feelings begin to blend. Early on, the grief of divorce is experienced as an intense period of feeling nothing but love, followed by an equally intense period of feeling nothing but anger, followed by an equally intense period of feeling nothing but sadness. ... Over time, however, the intensity of the feelings begins to wane, and the cycles of each emotion begin to blur and run into the other two. This overlapping of emotion results in a realistic, less emotionally painful view of the divorce.</blockquote>
<blockquote>"When the blending does not occur, people get stuck in one emotional cycle or another. Someone who gets stuck on love may deny the reality of the breakup and pine for reconciliation; someone caught up in anger will act out of vindictiveness and a need for revenge; those mired in sadness will assume an exaggerated and unrealistic sense of responsibility for what has occurred."</blockquote>

For most people, the difficult thing is that knowing about the stages of divorce and the grief cycle does precious little to actually solve the problem. You can intellectually know what's going on, but knowing what's going on doesn't mean that the emotions go away; there is no magic light switch that you can flip to turn your emotions off. Knowing about the emotional roller coaster can, however, keep you aware of what is motivating your reactions to your former partner and help you contain your emotions while you are negotiating the fallout from the end of your relationship.

It is important to remember that you and your former partner are probably not going to be at the same stage of the grieving process. One person can come to the conclusion the relationship is over long before separation and reach acceptance, while the other person is still in shock and denial that the relationship has ended. This is another factor that will aggravate feelings between you and your former partner.

Each person's goal at the end of the day is to find acceptance, that moment when you don't recognize your former partner's voice on the telephone right away. As Dr. Emery has observed, the opposite of love isn't hate; it's indifference.

===A warning about allies===

All of us seek allies as we cope with the end of a relationship. It's human nature. Allies may be found in family members, friends, co-workers, or a new boyfriend or girlfriend. While we all appreciate the support that allies can offer, allies can also polarize your position about your former partner, and sometimes encourage you to take an unreasonable and entrenched position when you need to be more flexible.

Allies take sides. That's just what they do. Imagine going to your mom or dad in tears, complaining about your former partner. Your parent's job isn't to say "Well, really Bob is a fine person and a great father, you really should lighten up a little and remember his good qualities." Their job is to comfort you, and that often means saying "Yeah, you're right, I can't believe what a complete ass Bob is being! Whatever did you see in him anyway?"

You shouldn't stop seeking reassurance and comfort from your allies, but you should try to be alert to the influence allies can have, even though they're not intentionally trying to worsen the issues you and your former partner are dealing with.

===A warning about parenting===

Some people best manage a breakup by walking out the door and never looking back, and doing their grieving alone. This just isn't possible where there is property to manage and divide, and it's especially not possible when a couple have children. You can't change your phone number, you can't stop answering the phone, and you can't refuse to see your former partner if you have children. You are still mom or dad, and you'll always be mom or dad and have a relationship with the other parent until or unless your children predecease you.

As a result, it is even more critical for you to properly manage the roller-coaster emotions of separation when you have children. You may be caught up in a whirlwind of anger and remorse at the present, but you have to think of the long-term effect of any rash behaviour. Do you want to be able to attend your child's graduation ceremony? Do you want to go to your child's wedding? How do you want your child to think of you in five years?

It is enormously difficult, but you simply must keep a button on your emotions while you grieve. Dr. Emery offers these suggestions in ''The Truth about Children and Divorce'':

*First, draw clear boundaries around your relationship with your former partner. Let your partner know what you're prepared to talk to him or her about, what information you're prepared to share, and what if anything you're prepared to do with the children together.
*Second, use those boundaries to form a more business-like relationship with your former partner. The two of you may not be friends, but together you are engaged in the "business" of parenting your children. Keep your emotional distance from your former partner.
*Third, respect these new rules. Don't intrude past those boundaries and keep your discussions focused on parenting. It may be hard not to react when your former partner pushes your buttons, but you're best off following this old saying: don't say anything if you don't have anything nice to say.

===A warning about children===

It can be extremely tempting to rely on your children to comfort you as you go through the grieving process. One word: ''don't''. Whatever else you do, don't do this.

Children will be well aware when something's wrong. They will know when you're upset, when you're withdrawn, and when you're crying. Younger children will react with confusion and possibly fear. Older children who are more emotionally sophisticated will want to comfort you. There's nothing wrong with this either, but you do need to control your emotions.

When a child becomes too involved in soothing a parent, there are two main risks: you may develop an overly adult relationship with the child and burden the child with too much information about what's going on, information that is usually age-inappropriate; or, the child may turn into a caretaker, handling your emotions, picking up the housework that's falling behind, and assuming a parenting role towards any younger children.

According to Dr. Emery, "extreme emotional care taking is developmentally inappropriate and can have long-term consequences on children's mental health." Children who grow up too soon are robbed of their right to be children. In the long-term they have trouble forming meaningful relationships, they may be emotionally distant, and they may be compulsively over-responsible.

==Resolving the issues==

There are a variety of ways to resolve the issues that arise when a relationship ends, the most common of which are negotiation, mediation, and litigation. Collaborative law is sort of a cross between negotiation and mediation.

Litigation is a contest between two parties, at the end of which, following trial, there is a winner and a loser. That's a bit of a gloss on things, but litigation really is adversarial in nature, and if the parties can't come to an agreement between themselves, a trial will be held and a judge will impose a resolution on the parties.

With mediation and negotiation, it's the parties themselves who come up with the resolution of their issues. Mediation in particular is cooperative in nature, and requires both parties to commit themselves to a dialogue aimed at finding a solution. There is no winner and no loser, as mediation and negotiation both demand accommodation, and neither party gets exactly what they want; these processes are about compromise.

Unless there is a pressing and manifest urgency, in my view negotiation and mediation are to be preferred over litigation. While it is absolutely true that in some situations court is the only way out, most people can find compromise no matter how wound up their emotional states happen to be.

In ''The Truth about Children and Divorce'', Dr. Emery describes three general categories of divorcing couples: the angry divorce, the distant divorce, and the cooperative divorce. While these categories are not exactly exhaustive and are drawn from an American legal construct, they are useful in discussing the impact of emotional separation on negotiation, mediation, and litigation.

===The cooperative separation===

Couples engaged in a cooperative separation have usually worked out a lot of their emotions and resolved much of their grief. They recognize their emotions for what they are, and avoid acting out of spite or tearfully reminiscing about the lost relationship. These couples attempt to work things out between themselves, with or without help from lawyers and mediators.

Cooperative separations usually result in a separation agreement or an order that they agree the court should make. Often, what little litigation may occur is limited to simply getting the divorce order.

===The distant separation===

Couples in a distant separation are able to keep their conflict from their children, but are still dealing with feelings of hurt, resentment, anger, and pain. While there is plenty of intense anger, this emotion usually fades to a growing dislike or indifference. These couples have done a lot less emotional work on their feelings, and their recollections of the relationship are characterized by bitterness rather than sadness.

These couples are not friends but know better than to become enemies, perhaps because of the children or past experience with the court system. They deal with each other minimally, without a great deal of warmth or demonstrated anger.

===The angry separation===

This, of course, is the type of separation to be wary of. These separations are also known as "high-conflict" separations. Couples in an angry separation have trouble letting go of the marriage, and feel intense pain and anger. Their emotions are usually raw and neither party has done a great deal to manage their feelings.

These couples have the hardest time dealing with each other and the legal issues between them, as they focus on "fault" and "blame," and are often unable to stop themselves from lashing out hurtfully. Resolving the issues is the most difficult for these couples, and they are the most prone to protracted, ugly litigation.

Couples in an angry separation, particularly those with children, generally need to get professional help in dealing with the emotional fallout from the end of the relationship if they are to avoid court and learn to cope with each other and their feelings in the months and years to come.

Angry separations are the sort that lawyers most often wind up dealing with. The epic battles couples engaged in an angry separation are capable of can barely be described. The legal issues arising from the breakup are rarely concluded within two years, and, when there are children, can run for six or more years! A trial rarely resolves issues between these couples, as they will often keep fighting long afterward about real or imagined changes in their respective circumstances following judgment. These couples are also living proof that money doesn't buy happiness — it buys you litigation, and lots of it.

===Anger===

By now, you will have guessed that the irrational thinking anger triggers can be the most important roadblock to resolving family law issues in a cooperative manner. Anger is an incredibly powerful emotion characterized by Dr. Emery as "the toxic residue of unresolved grief."

Anger also does a lot of very odd things that not many people are aware of. Ignorance of these different functions of anger can slow the grieving process, entrench unreasonable positions, and protract the resolution of the issues flowing from the end of a relationship.

====Anger avoids other emotions====

Anger can be used to divert blame from yourself and avoid feelings of guilt. People experiencing anger as a shield are often avoiding accepting responsibility for, perhaps, an affair or being the one who announced the end of the relationship. It can also stop you from experiencing the other primary emotions in the grieving process, sadness and love.

====Anger prolongs the relationship====

Intense anger can also signal that you are not yet done with the relationship. Conflict can be a way of drawing a former partner closer by getting their attention and maintaining the emotional relationship. Underneath this kind of anger remains love and a continuing attachment to a former partner, as illogical as this sounds.

====Anger hides fear====

The process of separation contains a lot of threats, whether real or imagined. Many of these threats are obvious: the risk of losing an asset, the risk of not being able to have another romantic relationship, the risk of losing one's children. Fear triggers the fight-or-flight response; anger can be a manifestation of the fight response.

====Anger blinds====

Anger can stop you from recognizing positive steps your former partner is taking to resolve issues, and lead you to assume that your partner is acting on false pretenses or on a hidden agenda. This kind of anger breeds suspicion that is often unwarranted.

Anger can also stop you from acknowledging your former partner's good qualities, especially around parenting issues. Avoiding admitting these qualities makes it easier to hold onto an objectively unreasonable position.

====Anger is easy====

For people who are emotionally bottled up, the emotions wrapped up in the grieving process can be very difficult. Both sadness and love can be difficult to acknowledge and deal with, particularly when feeling those emotions is associated with a loss of face. As a result, anger can be the easiest emotion to deal with and less painful to experience.

====The results of anger====

Apart from slowing down the grieving process, anger inevitably delays the resolution of the issues that come from the end of a relationship. An enraged person is not going to be able to negotiate since negotiation involves making concessions; an enraged person is mostly going to want to litigate. People in this state of mind make threats like "I'm going to take you for everything you've got," or "you'll never see the children again." They will also tell their lawyers that "it doesn't matter what it costs or whether I'm likely to lose, it's the principle of the thing!"

Sometimes these threats come true, and the consequences to both parties can be enormous.

*Someone who takes an unreasonable position out of anger will lose, but in carrying out their crusade they risk draining all of the family's assets to fund the litigation.
*Rage can permanently impair a couple's relationship with one another. Where there are no children, this may not be a problem, but where there are children this can be disastrous. You may not give a fig about your former partner, but what memories will your children have of the next five years of their lives?
*People can jump to ridiculous conclusions by expecting the worst from their former partner, leading to conflict after conflict ― and court application after court application. Redness on the buttocks of a toddler becomes evidence of molestation, rather than simple diaper rash.
*Rage can trigger "affidavit wars," in which each person makes inflated claims about the purported evils of the other. Minor events are exaggerated beyond all proportion. The costly "war" is triggered because the other party is put to the burden of addressing each inflated claim. Very rarely is a party able to refrain from making reciprocal claims about the misconduct of the other: "I drink all the time? Actually, I only drink socially but you smoked pot when you were pregnant." What is a judge to make of claims like these?
*Anger can strip you of your ability to see common sense and lead you to adopt positions that are objectively unreasonable and doomed to fail. In the process of failing, however, you can expect to spend a lot of money and further damage the tensions in your relationship with your former partner.

Rage, as Dr. Emery observes, is a symptom of unresolved grief. Whatever the cause, failing to move beyond anger can be poisonous to you, to your former partner, to your children, and to your relationship with your children. Some counselling, whether by yourself or with your former partner, can be critical in moving forward and out of anger.

===Choosing your lawyer===

Your choice of lawyer can play a large part in determining how your separation unfolds. Many lawyers are quite open to mediation and collaborative settlement processes, while a few others see litigation as the only means of resolving a dispute, particularly lawyers who have a reputation as being bulldogs. Other lawyers do not take their duty to respond promptly to correspondence particularly seriously, which will delay things and may result in an unnecessarily large number of interim applications. Still other lawyers see their duty as limited to militantly carrying out their clients' instructions, without supplying a great deal of options or cautions as to the likely effect of those instructions.

The best family law lawyers give their clients a common-sense analysis of their situation, based on probable outcomes and their expert knowledge of the law, and encourage their clients to take positions that are objectively reasonable. These lawyers will usually pursue settlement, both before and after litigation has started, and see litigation as a last resort. They are open to negotiation and mediation and other out-of-court processes, although they may prefer a result-oriented mediation process rather than the lengthier traditional mediation process that also tries to address emotional issues.

While some people, particularly those in angry separations, feel an almost irresistible urge to go out and hire the toughest bulldog around to exact revenge against their former partner, bulldogs rarely see any resolutions other than: a settlement on exactly the unreasonable, extortionate terms their clients want; or, a knock-down drag-'em-out trial. These lawyers cost the most, and you can expect the litigation process to drag out for an ungodly amount of time — with absolutely no guarantee of a better result than what you would have had if you'd taken a different, less antagonistic approach.

Even if you are in an angry separation, step back and take a breath. Remember that even though you may hate your former partner at present, you will have to live with the consequences of hasty litigation and your unreasonable positions well into the future. You might also lose your house to pay your lawyer's fees.

How do you find a lawyer? By reputation. Ask around; talk to friends who have had to deal with family lawyers before; ask for referrals from the other professionals in your life. You can also window shop. You don't have to hire the first lawyer you have a consultation with; go ahead and set up meetings with a bunch of different lawyers. You can find additional information about hiring a lawyer in the chapter about [[Introduction to the Legal System for Family Matters|The Legal System]], in the section [[You & Your Lawyer]].

You should also know that many lawyers who litigate are also accredited family law mediators. If the lawyer you're speaking to is also a family law mediator, you may want to enquire about the possibility of using his or her services to mediate your dispute before you say much more about your case. If you give the lawyer too much information about your situation, he or she may not be able to assume the impartial role demanded of a mediator.

===Required reading===

*''[http://www.worldcat.org/title/renegotiating-family-relationships-divorce-child-custody-and-mediation/oclc/30474579&referer=brief_results Renegotiating Family Relationships]'', by R.E. Emery
*''[http://www.worldcat.org/title/truth-about-children-and-divorce-dealing-with-the-emotions-so-you-and-your-children-can-thrive/oclc/53485317&referer=brief_results The Truth about Children and Divorce]'', by R.E. Emery (Read this book!)
*''[http://www.worldcat.org/title/rebuilding-when-your-relationship-ends/oclc/5707044&referer=brief_results Rebuilding: When Your Relationship Ends]'', by B. Fisher and R.E. Alberti
*''[http://www.worldcat.org/title/healing-hearts-helping-children-and-adults-recover-from-divorce/oclc/30739454&referer=brief_results Healing Hearts: Helping Children and Adults Recover from Divorce]'', by E. Hickey and E. Dalton
*''[http://www.worldcat.org/title/helping-your-kids-cope-with-divorce-the-sandcastles-way/oclc/37300625&referer=brief_results Helping your Kids Cope with Divorce the Sandcastles Way]'', by M.G. Neuman
*''[http://www.worldcat.org/title/joint-custody-with-a-jerk-raising-a-child-with-an-uncooperative-ex-a-hands-on-practical-guide-to-communicating-with-a-difficult-ex-spouse/oclc/682894488&referer=brief_results Joint Custody with a Jerk: Raising your Child with an Uncooperative Ex]'', by J.A. Ross

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

* [http://clicklaw.bc.ca/resource/1640 Legal Services Society’s Family Law Website: Separation]
* [http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice Website: Divorce and Separation]
* [http://www.counsellingbc.com BC Counsellors by Practice Area]
* [http://bc-counsellors.org/ BC Association of Clinical Counsellors]
* [http://www.bcamft.bc.ca/ohana/website/index.cfm?p=95575656796 BC Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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[[Category:JP Boyd on Family Law]]

Separating Emotionally

2017-08-02T21:50:26Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]] and [[Thomas Wallwork]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section discussed the law about separation. This section talks about the emotional dimensions of separation. The laws and the courts only deal with a narrow slice of all the things that go on when a relationship ends and often ignore, because they must, the larger emotional and psychological issues.

These issues, however, influence a couple's ability to work together after separation and often play a huge role in determining how a separating couple will go about resolving their legal problems. An understanding of the emotions involved in separation can help to reduce conflict and the cost of resolving the legal issues involved in separation.

This section applies to both married and unmarried couples. It provides an introduction to separating emotionally, looks at the grieving process that accompanies the end of a long-term relationship, and discusses how the emotional aspects of separation can impact on the resolution of the legal issues a couple might have to deal with.

==Introduction==

Ending a long-term relationship, whether married or unmarried, is not just a matter of packing your bags and walking out the front door. Separation stirs up incredibly powerful emotions that can take a surprisingly long time to work through; many counsellors liken these emotions to the grieving process that follows the death of a loved one. Chief among these emotions are love, anger, remorse, and sadness, and separating couples often find themselves experiencing these emotions in a very intense manner and cycling through them over and over.

These emotions often wind up clouding a person's judgment. You can find yourself doing things and saying things you never thought you would, or doing things you promised you'd never do again. You can find yourself looking at your partner and wondering who the hell this person really is, and how can they be so different from the person you were together with for so long. Unrecognized and unmanaged emotions can take over the emotional and legal processes of separation like a runaway train and take you down tracks you never anticipated.

The emotions involved in separation are normal. Everyone experiences them, although we each process these emotions in our own way. From a lawyer's perspective, the key problems that must be processed in the midst of these distorted and confused feelings are:

#settling the legal issues that crop up at the end of a relationship,
#obtaining reasonable instructions from the client,
#separating anger from the negotiation process,
#separating anger from the litigation process, and
#ensuring that the conflict doesn't spill out onto the children.

The vast majority of couples can resolve their issues through negotiation or mediation, no matter how angry they are with one another. Where a couple simply cannot separate the emotional baggage of separation from the resolution of the legal issues that come at the end of their relationship, litigation may be inevitable.

Many studies have shown that mediation and collaborative settlement processes produce agreements that are better for both parties and better for the children, and that last longer than the results of litigation. Mediation and collaborative processes can help a couple to work through their individual emotional issues and can produce an agreement that isn't so much a legal contract as it is a moral contract. Parents especially tend to deal with each other, and with their children, with a lot less rancour following a mediated or collaborative resolution of their problems.

Litigation is sometimes necessary, even when a couple is capable of a less antagonistic choice. Examples of this would be:
*when a party threatens to flee with a child;
*where there is a history of abuse or where abuse seems imminent; and,
*where a party is threatening to do something rash with family property.

When litigation is provoked by emotions arising from the end of the relationship and isn't really necessary, then you can run into some serious and expensive problems:

*One or both parents will adopt an entrenched and unreasonable position about things like the children and other family issues, sometimes a position that they would never have considered taking. Sometimes these positions are adopted out of spite or vindictiveness.
*The emotional tension will worsen, particularly when you see things you thought were long buried in the past put into an affidavit. There will be backstabbing, accusations, and wounded feelings.
*There is an increased risk of the children being used to goad the other parent, although sometimes this is unintentional.
*There is an increased risk of the alienation or estrangement of a child from a parent, and the permanent impairment of the child's relationship with that parent.
*There will be many interim applications and the litigation may not be settled even with a trial. In circumstances like these, the litigation many never truly end, especially when there are children involved.
*The litigation will cost an enormous amount of money, and you risk losing the equity in the family assets to court fees and legal fees.
*At the end of the day, you risk being permanently unable to communicate effectively with your former partner. This can be a serious problem when children are involved.

As a result of all of this, it can be critical to get a grip on your emotions right out of the starting gate. While all of these emotions are common, natural, and entirely understandable, failing to recognize and manage them can lead to disastrous short- and long-term consequences to your emotional well-being, your relationship with your children, your children's emotional well-being, and your financial situation. If you are having trouble managing your feelings and you have children, see a counsellor as soon as possible.

===Parenting after separation===

When a couple have children, they must accept that they will remain a permanent part of each other's lives, whether they like it or not. A couple may no longer be partners, but they will always be parents. The parental relationship does not end with the romantic relationship.

It is impossible to emphasize enough how important it is to always put the children first. This may sound a bit trite, but putting the children ahead of yourself can be an extremely challenging task when you are also trying to cope with the intense emotions involved in separation. It can be tremendously difficult to refrain from badmouthing your former partner to the children, "forgetting" to drop them off on time, and using them as a weapon.

The [http://www.justicebc.ca/en/fam/help/pas/index.html Parenting After Separation (PAS) program] is available throughout British Columbia. In my view, all couples with children can benefit from this program, no matter how well or poorly you think you and your former partner get along.

The Parenting After Separation program can offer important advice about talking to your children about the separation, talking about your former partner with the children, and talking with your former partner in ways that avoid hurting and wounding and are focused on the children.

Information about parenting after separation, including contact information for the different agencies that offer the PAS program, is available in the [[Children in Family Law Matters|Children]] chapter, in the section [[Parenting After Separation]]. As well, some very good research papers and literature reviews about parenting after separation, the costs of high-conflict separation, and other topics relating to the child's well-being and outcomes following separation can be found at the website of the [http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice]. These papers are of a uniformly high quality and are well worth the read.

===A few notes from JP Boyd===

I am not a psychologist, a psychiatrist or a counsellor. As a result, this section should be read with a grain of salt as it is based on my observations of my clients' experiences and a healthy dose of common sense. For the same reason, this section should not be used as an authority for the propositions it sets out.

There are a ton of resources available to help you cope with the separation process and keep the emotionally harmful aspects of the process away from your children. In addition to public programs, many counsellors specialize in helping people work through the emotional turmoil that often follows the end of a long-term relationship. Since counsellors are unregulated, anyone can hang a shingle saying that they offer counselling services. What you should be looking for are people with the designation of Registered Clinical Counsellor (RCC), Certified Canadian Counsellor (CCC) or Registered Psychologist (RPsych).

*The website [http://www.counsellingbc.com/ counsellingbc.com] offers a list of subscribing counsellors by area of practice.
*The [http://bc-counsellors.org/ BC Association of Clinical Counsellors] also maintains a referral list of its members.
*The [http://www.bcamft.bc.ca/ohana/website/index.cfm?p=95575656796 BC Association for Marriage and Family Therapy] has a referral list and helpful information about how to choose a counsellor.

==The grieving process==

Many counsellors liken the process of emotionally separating from a long-term relationship to the grieving process that happens when a loved one dies. In general, this process can be expected to take one to two years to complete. Dr. Elizabeth Kubler-Ross, in her book ''[http://www.worldcat.org/title/on-death-and-dying/oclc/4238 On Death and Dying]'', describes a five-stage model of grief, and how grief affects our ability to make decisions in each stage.

*'''Shock and denial:''' "This isn't happening to me!" An initial paralysis at hearing the bad news; trying to avoid the inevitable. People usually avoid making decisions or taking action at this point.
*'''Anger:''' "Why is this happening to me?" A frustrated outpouring of bottled-up emotion. Making decisions at this point is difficult because all one's energy gets put into the emotion rather than problem-solving, and the other partner is usually vilified.
*'''Dialogue and bargaining:''' "I promise I'll be a better person if..." Seeking in vain for a way out; seeking paths that might offer a solution. People generally become more willing to explore alternatives.
*'''Depression and detachment:''' "I just don't care anymore." A final realization of the inevitable. It is hard to make reasonable decisions at this stage because of the sense of resignation.
*'''Acceptance:''' "I'm ready for whatever comes." Finally finding the way forward. Decisions are much easier to make because people have found new purpose, having begun to accept the loss.

Dr. Robert Emery agrees that the Kubler-Ross model applies to separating, but he looks at the grief process in a slightly different way. In his book ''[http://www.worldcat.org/title/renegotiating-family-relationships-divorce-child-custody-and-mediation/oclc/30474579&referer=brief_results Renegotiating Family Relationships]'', Dr. Emery describes the grieving process as a cycle of love, anger, and sadness, which gets repeated in varying degrees of intensity as a person works their way through the Kubler-Ross stages, from shock and denial through to acceptance of the end of the relationship.

In his excellent book ''[http://www.worldcat.org/title/truth-about-children-and-divorce-dealing-with-the-emotions-so-you-and-your-children-can-thrive/oclc/53485317&referer=brief_results The Truth about Children and Divorce]'', Dr. Emery says this:

<blockquote>"Over time the intensity of the emotions diminishes and people usually find that the feelings begin to blend. Early on, the grief of divorce is experienced as an intense period of feeling nothing but love, followed by an equally intense period of feeling nothing but anger, followed by an equally intense period of feeling nothing but sadness. ... Over time, however, the intensity of the feelings begins to wane, and the cycles of each emotion begin to blur and run into the other two. This overlapping of emotion results in a realistic, less emotionally painful view of the divorce.</blockquote>
<blockquote>"When the blending does not occur, people get stuck in one emotional cycle or another. Someone who gets stuck on love may deny the reality of the breakup and pine for reconciliation; someone caught up in anger will act out of vindictiveness and a need for revenge; those mired in sadness will assume an exaggerated and unrealistic sense of responsibility for what has occurred."</blockquote>

For most people, the difficult thing is that knowing about the stages of divorce and the grief cycle does precious little to actually solve the problem. You can intellectually know what's going on, but knowing what's going on doesn't mean that the emotions go away; there is no magic light switch that you can flip to turn your emotions off. Knowing about the emotional roller coaster can, however, keep you aware of what is motivating your reactions to your former partner and help you contain your emotions while you are negotiating the fallout from the end of your relationship.

It is important to remember that you and your former partner are probably not going to be at the same stage of the grieving process. One person can come to the conclusion the relationship is over long before separation and reach acceptance, while the other person is still in shock and denial that the relationship has ended. This is another factor that will aggravate feelings between you and your former partner.

Each person's goal at the end of the day is to find acceptance, that moment when you don't recognize your former partner's voice on the telephone right away. As Dr. Emery has observed, the opposite of love isn't hate; it's indifference.

===A warning about allies===

All of us seek allies as we cope with the end of a relationship. It's human nature. Allies may be found in family members, friends, co-workers, or a new relationship. While we all appreciate the support that allies can offer, allies can also polarize your position about your former partner, and sometimes encourage you to take an unreasonable and entrenched position when you need to be more flexible.

Allies take sides. That's just what they do. Imagine going to your mom or dad in tears, complaining about your former partner. Your parent's job isn't to say "Well, really Bob is a fine person and a great father, you really should lighten up a little and remember his good qualities." Their job is to comfort you, and that often means saying "Yeah, you're right, I can't believe what a complete ass Bob is being! Whatever did you see in him anyway?"

You shouldn't stop seeking reassurance and comfort from your allies, but you should try to be alert to the influence allies can have, even though they're not intentionally trying to worsen the issues you and your former partner are dealing with.

===A warning about parenting===

Some people best manage a breakup by walking out the door and never looking back, and doing their grieving alone. This just isn't possible where there is property to manage and divide, and it's especially not possible when a couple have children. You can't change your phone number, you can't stop answering the phone, and you can't refuse to see your former partner if you have children. You are still mom or dad, and you'll always be mom or dad and have a relationship with the other parent until or unless your children predecease you.

As a result, it is even more critical for you to properly manage the roller-coaster emotions of separation when you have children. You may be caught up in a whirlwind of anger and remorse at the present, but you have to think of the long-term effect of any rash behaviour. Do you want to be able to attend your child's graduation ceremony? Do you want to go to your child's wedding? How do you want your child to think of you in five years?

It is enormously difficult, but you simply must keep a button on your emotions while you grieve. Dr. Emery offers these suggestions in ''The Truth about Children and Divorce'':

#First, draw clear boundaries around your relationship with your former partner. Let your partner know what you're prepared to talk to them about, what information you're prepared to share, and what if anything you're prepared to do with the children together.
#Second, use those boundaries to form a more business-like relationship with your former partner. The two of you may not be friends, but together you are engaged in the "business" of parenting your children. Keep your emotional distance from your former partner.
#Third, respect these new rules. Don't intrude past those boundaries and keep your discussions focused on parenting. It may be hard not to react when your former partner pushes your buttons, but you're best off following this old saying: don't say anything if you don't have anything nice to say.

===A warning about children===

It can be extremely tempting to rely on your children to comfort you as you go through the grieving process. One word: ''don't''. Whatever else you do, don't do this.

Children will be well aware when something's wrong. They will know when you're upset, when you're withdrawn, and when you're crying. Younger children will react with confusion and possibly fear. Older children who are more emotionally sophisticated will want to comfort you. There's nothing wrong with this either, but you do need to control your emotions.

When a child becomes too involved in soothing a parent, there are two main risks: you may develop an overly adult relationship with the child and burden the child with too much information about what's going on, information that is usually age-inappropriate; or, the child may turn into a caretaker, handling your emotions, picking up the housework that's falling behind, and assuming a parenting role towards any younger children.

According to Dr. Emery, "extreme emotional care taking is developmentally inappropriate and can have long-term consequences on children's mental health." Children who grow up too soon are robbed of their right to be children. In the long-term they have trouble forming meaningful relationships, they may be emotionally distant, and they may be compulsively over-responsible.

==Resolving the issues==

There are a variety of ways to resolve the issues that arise when a relationship ends, the most common of which are negotiation, mediation, and litigation. Collaborative law is sort of a cross between negotiation and mediation.

Litigation is a contest between two parties, at the end of which, following trial, there is a winner and a loser. That's a bit of a gloss on things, but litigation really is adversarial in nature, and if the parties can't come to an agreement between themselves, a trial will be held and a judge will impose a resolution on the parties.

With mediation and negotiation, it's the parties themselves who come up with the resolution of their issues. Mediation in particular is cooperative in nature, and requires both parties to commit themselves to a dialogue aimed at finding a solution. There is no winner and no loser, as mediation and negotiation both demand accommodation, and neither party gets exactly what they want; these processes are about compromise.

Unless there is a pressing and manifest urgency, in my view negotiation and mediation are to be preferred over litigation. While it is absolutely true that in some situations court is the only way out, most people can find compromise no matter how wound up their emotional states happen to be.

In ''The Truth about Children and Divorce'', Dr. Emery describes three general categories of divorcing couples: the angry divorce, the distant divorce, and the cooperative divorce. While these categories are not exactly exhaustive and are drawn from an American legal construct, they are useful in discussing the impact of emotional separation on negotiation, mediation, and litigation.

===The cooperative separation===

Couples engaged in a cooperative separation have usually worked out a lot of their emotions and resolved much of their grief. They recognize their emotions for what they are, and avoid acting out of spite or tearfully reminiscing about the lost relationship. These couples attempt to work things out between themselves, with or without help from lawyers and mediators.

Cooperative separations usually result in a separation agreement or an order that they agree the court should make. Often, what little litigation may occur is limited to simply getting the divorce order.

===The distant separation===

Couples in a distant separation are able to keep their conflict from their children, but are still dealing with feelings of hurt, resentment, anger, and pain. While there is plenty of intense anger, this emotion usually fades to a growing dislike or indifference. These couples have done a lot less emotional work on their feelings, and their recollections of the relationship are characterized by bitterness rather than sadness.

These couples are not friends but know better than to become enemies, perhaps because of the children or past experience with the court system. They deal with each other minimally, without a great deal of warmth or demonstrated anger.

===The angry separation===

This, of course, is the type of separation to be wary of. These separations are also known as ''high-conflict'' separations. Couples in an angry separation have trouble letting go of the marriage, and feel intense pain and anger. Their emotions are usually raw and neither party has done a great deal to manage their feelings.

These couples have the hardest time dealing with each other and the legal issues between them, as they focus on fault and blame, and are often unable to stop themselves from lashing out hurtfully. Resolving the issues is the most difficult for these couples, and they are the most prone to protracted, ugly litigation.

Couples in an angry separation, particularly those with children, generally need to get professional help in dealing with the emotional fallout from the end of the relationship if they are to avoid court and learn to cope with each other and their feelings in the months and years to come.

Angry separations are the sort that lawyers most often wind up dealing with. The epic battles couples engaged in an angry separation are capable of can barely be described. The legal issues arising from the breakup are rarely concluded within two years, and, when there are children, can run for six or more years! A trial rarely resolves issues between these couples, as they will often keep fighting long afterward about real or imagined changes in their respective circumstances following judgment. These couples are also living proof that money doesn't buy happiness — it buys you litigation, and lots of it.

===Anger===

By now, you will have guessed that the irrational thinking anger triggers can be the most important roadblock to resolving family law issues in a cooperative manner. Anger is an incredibly powerful emotion characterized by Dr. Emery as "the toxic residue of unresolved grief."

Anger also does a lot of very odd things that not many people are aware of. Ignorance of these different functions of anger can slow the grieving process, entrench unreasonable positions, and protract the resolution of the issues flowing from the end of a relationship.

====Anger avoids other emotions====

Anger can be used to divert blame from yourself and avoid feelings of guilt. People experiencing anger as a shield are often avoiding accepting responsibility for, perhaps, an affair or being the one who announced the end of the relationship. It can also stop you from experiencing the other primary emotions in the grieving process, sadness and love.

====Anger prolongs the relationship====

Intense anger can also signal that you are not yet done with the relationship. Conflict can be a way of drawing a former partner closer by getting their attention and maintaining the emotional relationship. Underneath this kind of anger remains love and a continuing attachment to a former partner, as illogical as this sounds.

====Anger hides fear====

The process of separation contains a lot of threats, whether real or imagined. Many of these threats are obvious: the risk of losing an asset, the risk of not being able to have another romantic relationship, the risk of losing one's children. Fear triggers the fight-or-flight response; anger can be a manifestation of the fight response.

====Anger blinds====

Anger can stop you from recognizing positive steps your former partner is taking to resolve issues, and lead you to assume that your partner is acting on false pretenses or on a hidden agenda. This kind of anger breeds suspicion that is often unwarranted.

Anger can also stop you from acknowledging your former partner's good qualities, especially around parenting issues. Avoiding admitting these qualities makes it easier to hold onto an objectively unreasonable position.

====Anger is easy====

For people who are emotionally bottled up, the emotions wrapped up in the grieving process can be very difficult. Both sadness and love can be difficult to acknowledge and deal with, particularly when feeling those emotions is associated with a loss of face. As a result, anger can be the easiest emotion to deal with and less painful to experience.

====The results of anger====

Apart from slowing down the grieving process, anger inevitably delays the resolution of the issues that come from the end of a relationship. An enraged person is not going to be able to negotiate since negotiation involves making concessions; an enraged person is mostly going to want to litigate. People in this state of mind make threats like "I'm going to take you for everything you've got," or "you'll never see the children again." They will also tell their lawyers that "it doesn't matter what it costs or whether I'm likely to lose, it's the principle of the thing!"

Sometimes these threats come true, and the consequences to both parties can be enormous.

*Someone who takes an unreasonable position out of anger will lose, but in carrying out their crusade they risk draining all of the family's assets to fund the litigation.
*Rage can permanently impair a couple's relationship with one another. Where there are no children, this may not be a problem, but where there are children this can be disastrous. You may not give a fig about your former partner, but what memories will your children have of the next five years of their lives?
*People can jump to ridiculous conclusions by expecting the worst from their former partner, leading to conflict after conflict ― and court application after court application. Redness on the buttocks of a toddler becomes evidence of molestation, rather than simple diaper rash.
*Rage can trigger "affidavit wars," in which each person makes inflated claims about the purported evils of the other. Minor events are exaggerated beyond all proportion. The costly "war" is triggered because the other party is put to the burden of addressing each inflated claim. Very rarely is a party able to refrain from making reciprocal claims about the misconduct of the other: "I drink all the time? Actually, I only drink socially but you smoked pot when you were pregnant." What is a judge to make of claims like these?
*Anger can strip you of your ability to see common sense and lead you to adopt positions that are objectively unreasonable and doomed to fail. In the process of failing, however, you can expect to spend a lot of money and further damage the tensions in your relationship with your former partner.

Rage, as Dr. Emery observes, is a symptom of unresolved grief. Whatever the cause, failing to move beyond anger can be poisonous to you, to your former partner, to your children, and to your relationship with your children. Some counselling, whether by yourself or with your former partner, can be critical in moving forward and out of anger.

===Choosing your lawyer===

Your choice of lawyer can play a large part in determining how your separation unfolds. Many lawyers are quite open to mediation and collaborative settlement processes, while a few others see litigation as the only means of resolving a dispute, particularly lawyers who have a reputation as being bulldogs. Other lawyers do not take their duty to respond promptly to correspondence particularly seriously, which will delay things and may result in an unnecessarily large number of interim applications. Still other lawyers see their duty as limited to militantly carrying out their clients' instructions, without supplying a great deal of options or cautions as to the likely effect of those instructions.

The best family law lawyers give their clients a common-sense analysis of their situation, based on probable outcomes and their expert knowledge of the law, and encourage their clients to take positions that are objectively reasonable. These lawyers will usually pursue settlement, both before and after litigation has started, and see litigation as a last resort. They are open to negotiation and mediation and other out-of-court processes, although they may prefer a result-oriented mediation process rather than the lengthier traditional mediation process that also tries to address emotional issues.

While some people, particularly those in angry separations, feel an almost irresistible urge to go out and hire the toughest bulldog around to exact revenge against their former partner, bulldogs rarely see any resolutions other than: a settlement on exactly the unreasonable, extortionate terms their clients want; or, a knock-down drag-'em-out trial. These lawyers cost the most, and you can expect the litigation process to drag out for an ungodly amount of time — with absolutely no guarantee of a better result than what you would have had if you'd taken a different, less antagonistic approach.

Even if you are in an angry separation, step back and take a breath. Remember that even though you may hate your former partner at present, you will have to live with the consequences of hasty litigation and your unreasonable positions well into the future. You might also lose your house to pay your lawyer's fees.

How do you find a lawyer? By reputation. Ask around; talk to friends who have had to deal with family lawyers before; ask for referrals from the other professionals in your life. You can also window shop. You don't have to hire the first lawyer you have a consultation with; go ahead and set up meetings with a bunch of different lawyers. You can find additional information about hiring a lawyer in the chapter about [[Introduction to the Legal System for Family Matters|The Legal System]], in the section [[You & Your Lawyer]].

You should also know that many lawyers who litigate are also accredited family law mediators. If the lawyer you're speaking to is also a family law mediator, you may want to enquire about the possibility of using their services to mediate your dispute before you say much more about your case. If you give the lawyer too much information about your situation, they may not be able to assume the impartial role demanded of a mediator.

===Required reading===

*''[http://www.worldcat.org/title/renegotiating-family-relationships-divorce-child-custody-and-mediation/oclc/30474579&referer=brief_results Renegotiating Family Relationships]'', by R.E. Emery
*''[http://www.worldcat.org/title/truth-about-children-and-divorce-dealing-with-the-emotions-so-you-and-your-children-can-thrive/oclc/53485317&referer=brief_results The Truth about Children and Divorce]'', by R.E. Emery (Read this book!)
*''[http://www.worldcat.org/title/rebuilding-when-your-relationship-ends/oclc/5707044&referer=brief_results Rebuilding: When Your Relationship Ends]'', by B. Fisher and R.E. Alberti
*''[http://www.worldcat.org/title/healing-hearts-helping-children-and-adults-recover-from-divorce/oclc/30739454&referer=brief_results Healing Hearts: Helping Children and Adults Recover from Divorce]'', by E. Hickey and E. Dalton
*''[http://www.worldcat.org/title/helping-your-kids-cope-with-divorce-the-sandcastles-way/oclc/37300625&referer=brief_results Helping your Kids Cope with Divorce the Sandcastles Way]'', by M.G. Neuman
*''[http://www.worldcat.org/title/joint-custody-with-a-jerk-raising-a-child-with-an-uncooperative-ex-a-hands-on-practical-guide-to-communicating-with-a-difficult-ex-spouse/oclc/682894488&referer=brief_results Joint Custody with a Jerk: Raising your Child with an Uncooperative Ex]'', by J.A. Ross

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

* [http://clicklaw.bc.ca/resource/1640 Legal Services Society’s Family Law Website: Separation]
* [http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice Website: Divorce and Separation]
* [http://www.counsellingbc.com BC Counsellors by Practice Area]
* [http://bc-counsellors.org/ BC Association of Clinical Counsellors]
* [http://www.bcamft.bc.ca/ohana/website/index.cfm?p=95575656796 BC Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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[[Category:JP Boyd on Family Law]]

Separation and the Law

2017-08-02T21:09:56Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]] and [[Thomas Wallwork]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}Separation usually signals the breakdown of a married or unmarried relationship. It can be one of the most traumatic stages in the conclusion of a relationship, but it can also lead to reconciliation and the resumption of life together as a committed couple. Separation occurs when one or both spouses decide that their relationship is over and say so; there's no need to hire a lawyer or to seek the approval of a judge.

This section discusses the legal aspects of separation, the rules relating to reconciliation, and some of the other issues you may want to consider once you have separated or have decided to separate. The information applies to married spouses and unmarried spouses.

This section will also address some common questions about sex and new relationships after separation. The next section, [[Separating Emotionally]], talks about the emotional dimensions of separation and how those emotional issues can influence the resolution of the legal issues.

==Introduction==

Although many people move out when they separate, others separate and remain living under the same roof. A physical separation is not necessary to separate; there must simply be an intention to end the relationship and the intimacies and mutual support that a committed relationship usually involves.

Often the decision to separate is made by both spouses, but it only takes one spouse to decide to end a relationship, and a spouse's decision to end a relationship doesn't require the consent of the other spouse.

Some people go to family law lawyers to get a "legal separation." Separation is accomplished, in most cases, by simply leaving the family home with the intention of living separate and apart, although technically speaking it isn't necessary to move out at all. Once you or your spouse has left the family home or announced that the marriage is at an end, you're separated. There are no special legal documents to sign or file in court to become separated, and there is no such thing as a legal separation in British Columbia.

Everyone is entitled to separate if they wish to end a relationship, and you don't need to see a lawyer to do so; the function of the family law lawyer is to assist in the resolution of the issues arising from the breakdown of the relationship.

Now, to be fair, what people often mean by "legal separation" is a ''separation agreement''. This is something else altogether. A separation agreement is a contract that a couple use to record their agreement about things like how the children will be cared for, how their property will be shared, and how child support and spousal support will be paid. Separation agreements are not always necessary, and you can't be forced to sign a separation agreement.

You can find more information about separation agreements in the chapter [[Family Law Agreements]] within the section [[Separation Agreements]]. You can find out more about preparing to separate in [[How Do I Prepare for Separation?]], located in the ''How Do I?'' section of this resource. Look under ''Marriage, Separation & Divorce''.

===The date of separation===

Under the old ''[[Family Relations Act]]'', married spouses rarely argued about when they separated. The issue was sometimes important for unmarried spouses because their ability to ask for spousal support depended on whether they started a court proceeding within one year of the date of separation.

Under the new ''[[Family Law Act]]'', the date of separation has become very important for both married and unmarried spouses.

In general, the date of separation will have the following effects:

*each spouse becomes enttiled to a half-interest in all family property, whether that property is owned jointly or in the name of the other spouse only;
*the spouses each become responsible (as between the spouses) for one half of family debts;
*any property either spouse obtains after the date of separation is his or her own separate property, and not family property;
*any debt either spouse incurs after the date of separation is that spouse's sole responsibility;
*unmarried (ie. common-law) spouses have two years past the ''date of separation'' to start a claim in court for division of family property, spousal support, or sharing of family debts, if they cannot otherwise agree;
*married spouses have two years from the date of their ''divorce'' to bring claims in court for division of family property, spousal support, or division of debts.

The [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]] chapter talks about the first four issues in more detail; the [[Spousal Support]] chapter talks about the last issue.

Spouses do not need to move out in order to be separated. What's needed is for at least one spouse to reach the conclusion that the relationship is over, to say as much to the other spouse, and then begin behaving as if the relationship is over. That usually means stopping behaving like a couple, stopping sleeping together, stopping doing chores and tasks for each other, and so on. Section 3(4) of the ''Family Law Act'' talks about separation:

<blockquote><tt>For the purposes of this Act,</tt></blockquote>
<blockquote><blockquote><tt>(a) spouses may be separated despite continuing to live in the same residence, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the court may consider, as evidence of separation,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.</tt></blockquote></blockquote></blockquote>

This is helpful, because the old ''Family Relations Act'' didn't talk about separation in any detail. However, the phrase in s. 3(4)(b), "the court may consider," suggests that this section isn't a comprehensive listing of things the court should consider, and the cases about separation are still very helpful. Here are some of the highlights:

''Herman v. Herman'', Nova Scotia Supreme Court, 1969:

<blockquote>"[A]s long as the spouses treat the parting or absence, be it long or short, as temporary and not permanent, the couple is not living separately even though physically it is living apart. In order to come within the clear meaning of the words 'separate and apart' in the statute, there must need be not only a physical absence one from the other, but also a destruction of the consortium vitae or as the act terms it, marriage breakdown."</blockquote>

''Hills v. Hills'', Nova Scotia Supreme Court, 1969:

<blockquote>"[T]he words 'living separate' connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other."</blockquote>

''McDorman v. McDorman'', New Brunswick Supreme Court, 1972:

<blockquote>"While the mere living separate and apart of the spouses may not be conclusive of the fact that there has been a permanent breakdown of the marriage, especially in cases where the separation may have been brought about … by enforced hospitalization … all of the circumstances accompanying such separation must be considered in determining whether or not it has in fact led to a permanent marriage breakdown."</blockquote>

''Lachman v. Lachman'', Ontario Court of Appeal, 1970:

<blockquote>"A marital relationship is broken down when one only of the spouses is without the intent for it to subsist."</blockquote>

It's important to know that the Canada Revenue Agency has its own definition of separation, and requires people to have lived separate and apart for 90 days before considering them to actually be separated; once the 90-day period is over, the date of separation is the date the couple began to live separate and apart.

===Being separated while living together===

It is possible to separate and remain living under the same roof as your spouse. People sometimes do this when they simply cannot afford to make ends meet while maintaining separate homes or when neither spouse wants to leave the home and the children.

In order for the courts to recognize this form of separation as a separation, the spouses must live as if they have completely ended the romantic aspect of their relationship. This usually includes sleeping in separate beds in separate rooms, opening separate bank accounts and closing joint accounts, separately performing household chores like laundry and cooking, not going out as a couple, and so on. Either way, the spouses must stop behaving as if they are a couple.

Because the date of separation can sometimes be hard to pin down when separated spouses continue to live under the same roof, it can be very helpful to make some sort of record of the date that separation occurred. Sending a letter or email to your spouse to confirm separation might be a good idea; make sure you keep a copy.

===Desertion===

This ground for divorce has been abolished.

Instead, s. 8(1)(2)(a) of the ''Divorce Act (Canada)'' allows either spouse to apply for a divorce on the ground that the spouses have been living separate and apart for at least a year, and that there is no chance of reconciliation.

===Separation and children===

Under s. 39(1) of the ''Family Law Act'', a parent is a guardian of his or her child both while the parents live together and remain guardians even after the parents separate.

Separation can be extraordinarily difficult on children. In most registries of the Provincial Court, couples are required to attend a Parenting After Separation program. This program, which is brief and free, teaches parents how to communicate with one another after separation and how to talk to their children about separation. It is an extremely useful program, and one which I encourage all separating parents to take. You can find more information about this program and other issues relating to children and separation in the [[Children in Family Law Matters|Children]] chapter, in the section [[Parenting after Separation]].

Separation is, of course, also difficult for the adults who are separating. You can find more information about the emotional dimensions of separation in the next section of this chapter, [[Separating Emotionally]].

==Reconciliation==

For some couples, a period of separation does not sound their relationship's death knell. For some, a period of separation can be a time for rebuilding a relationship and can become a healthy break that rejuvenates and revitalizes a marriage.

===Married spouses===

The ''[[Divorce Act]]'' contains a number of provisions intended to discourage divorce and encourage spouses to remain together. Section 8(3)(b) of the act provides that:

<blockquote><tt>A period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated</tt></blockquote>
<blockquote><blockquote><tt>(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse's own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.</tt></blockquote></blockquote>

In other words, a married couple may attempt to reconcile and can resume a cohabiting relationship for a maximum of 90 days without stopping the clock on separation as a ground of divorce. If a couple have lived together for more than 90 days since the first separation, the clock will start again at the end of the last period in which they lived together as a married couple.

The 90 days needn't be consecutive in order to stop the clock. If you are claiming separation as the ground of your divorce, you cannot have resumed your relationship with your spouse for a total of 90 days within the one-year period of separation.

===Unmarried spouses===

Because unmarried couples don't need to get divorced, the ''[[Family Law Act]]'' has no similar provisions about separation and attempts at reconciliation, except in relation to property. Section 83(1) says this:

<blockquote><tt>For the purposes of this Part, spouses are not considered to have separated if, within one year after separation, </tt></blockquote>
<blockquote><blockquote><tt>(a) they begin to live together again and the primary purpose for doing so is to reconcile, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) they continue to live together for one or more periods, totalling at least 90 days. </tt></blockquote></blockquote>

These provisions are important because the date of separation is the date when new property and new debt stop being shared family property and family debt and start being each spouse's separate property and debt.

==Things to think about after separation==

Once you've separated, there a number of things you may want to do, change, or adjust to reflect the new circumstances of your relationship with your spouse.

===Bank accounts and credit cards===

You should remove your name from any joint bank accounts or credit cards. If your spouse has signing authority or debiting authority on any of your accounts or credit cards, you should consider cancelling his or her authority.

Credit cards, loans and lines of credit can often be capped by telling the bank to make the accounts ''deposit only''. This will mean that no more withdrawals can be made and the only transactions that can take place are deposits. You could also tell the bank to reduce the credit limit to the current balance on the account.

===Insurance policies, pensions and RRSPs===

You may wish to change the beneficiary of your insurance policies, pensions, and RRSP accounts if your spouse is the present beneficiary. If your spouse is the irrevocable beneficiary on such an account, your bank or insurance company may require your spouse's consent to remove his or her name as a beneficiary.

===Jointly owned real estate===

Most spouses own real estate as “joint tenants”. The essential feature of this type of ownership is that if one of you dies, then the surviving party will own the entire property. This does '''not''' change as a result of your separation.

There are reasons for and against keeping the ownership as joint tenants. If you do not want to risk the property becoming entirely owned by your spouse in case of your death, then you can change the type of ownership by transferring your interest to yourself. This change must be registered with the Land Title Office.

You should see a real estate lawyer for help in changing the way that you own the real estate.

===Wills===

If you separate and your spouse dies, you cannot rely on your spouse's will. Unless the Will says otherwise, any gift or appointment the deceased spouse made to you is revoked at the date of your separation. If you want to make a claim to property owned by your spouse's estate, or for support from your spouse's estate, then you must sue your spouse's estate under the ''[http://canlii.ca/t/8q3k Family Law Act]'' and the ''[http://canlii.ca/t/7vbw Divorce Act]''.

If you still want your spouse to receive a gift or appointment through your Will, you must update your Will and specify that the gift or appointment should proceed even after your separation.

You should see a wills and estates lawyer for help in making or changing a will.

===Powers of attorney and other authorizations===

Under the ''[http://canlii.ca/t/849l Power of Attorney Act]'', if you are unmarried, any power of attorney made by you and your spouse terminates when your marriage or marriage-like relationship ends. However, if you ''are'' married, the power of attorney may only terminate when you get an order for divorce. The courts still need to interpret this section.

No matter what your relationship status is, if you want to be sure that your power of attorney has been terminated, you need to prepare a written revocation and deliver a copy to all financial institutions where you have an account, as well as a copy to your spouse and anybody else you have appointed as your attorney. Always keep records of your revocation, and how and when you delivered the revocation.

If you do still want your former spouse to be able to act as your attorney after you separate, then you should prepare a new power of attorney to make sure that he or she has a valid power of attorney.

If you wish to revoke an existing power of attorney or other authorization or to create a new one, you should speak with a wills and estates lawyer to have the proper documents drawn up.

===Medical and dental insurance===

Normally, spouses and children are still covered by the other spouse's health insurance for a period of time after separation. Coverage for children usually ends once the children turn 19; coverage for married spouses almost always ends on divorce, but coverage for unmarried spouses may end when the parties stop living together. You should contact the people who administer your insurance plan for more information as different plans have different rules about the eligibility of spouses as beneficiaries following separation.

For most people, maintaining spousal benefits cost little or nothing. If that's the case, consider leaving your spouse's coverage in place for as long as your plan allows; it will appear rather mean-spirited if you cancel your spouse's benefits. Whatever you do, don't cancel the children's benefits!

===Finances and assets===

When you separate, make sure you take with you or secure the following items:

*your financial information, including your credit card statements, bank statements, RRSP and investment account statements, and so forth,
*your MSP card and your private medical insurance card, if you have one,
*your children's birth certificates,
*your immigration or citizenship documents, if you are new to Canada, and
*your passport and your children's passports.

You may also wish to take a fair share, half or less than half, of the household property such as the children's clothing, the furniture, and your personal effects. However, I would really encourage you to think twice about this and proceed with caution. Yes, the odds are quite good that half the common household property is yours, but the last thing you want to do after separation is to ramp up the tension any further. If you absolutely cannot live without the dish set, then take the dish set, but otherwise it may be best to leave the dish set at home. Nothing looks worse than the spouse who takes half the glasses, half the cutlery, half of a dining room suite and half of the living room furniture.

Now, this may seem a bit pessimistic, but you should also take a list of all of the property your spouse owns in his or her own name and of all the things the two of you own jointly. A detailed list, including balances and account numbers and serial numbers, would be ideal, but even something as simple as a list of the financial and other institutions you and your spouse deal with will do. You can collect that information by writing down the names and addresses of the people who are sending your spouse statements; you don't even have to open the envelopes. This information could prove invaluable if you wind up in an argument about who owns what or the extent of the family property and family debt.

==Sex and new relationships after separation==

A lot of readers have questions about the consequences of sex after separation. The discussion that follows is about sex with spouses, sex with people other than spouses, new relationships, and how a married spouse can be in a unmarried spousal relationship with someone else while still being married.

===Sex with spouses===

There are, generally speaking, no legal consequences to having sex with your spouse after you've separated. While it might cause some emotional difficulties — such as prolonging the amount of time it takes to recover from a relationship that's broken down — there is nothing legally wrong with having sex with your spouse. Most people would say that there's nothing morally wrong with it either.

Having sex with your spouse after separation will not have an impact on how the care of the children is managed, the amount of child support to be paid, whether spousal support should be paid, or how your property and debt should be divided. The court does not look into this sort of conduct in determining these issues.

However, two things that married spouses probably need to think about are these:

*'''Reconciliation:''' While simply having sex with your spouse won't count toward the 90-day period of reconciliation described above, it may if you begin to live with each other while you're doing it.
*'''Divorces based on adultery:''' If you are making a claim for a divorce based on your spouse's adultery, and you have sex with your spouse after you start the claim, you could be considered to have forgiven your spouse for the adulterous conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on his or her adultery. The same principle would probably also apply to divorce claims based on cruelty.

===Sex with other people===

Just like having sex with your spouse after you've separated, there's nothing wrong with having sex with someone else after you've separated. Separation is partly defined as leaving a spouse with the intention of ending the relationship. Once you've separated, the court will consider the romantic, marriage-like aspect of the relationship to have concluded, and your obligation to remain monogamous along with it. Married spouses won't be divorced until they get a court order, of course, but after separation the marital aspects of their relationships, and the attendant expectations of monogamy, will be considered to be at an end.

Having sex with someone else will not have an impact on how the care of the children should be managed, the amount of child support to be paid, whether spousal support should be paid, or how the family property and debt should be divided. The court does not consider this sort of conduct in determining these issues.

====Is it adultery?====

Adultery is only an issue for married spouses. Technically speaking, it is in fact adultery to have sex with anyone other than your spouse for so long as you are married. You will remain married until you have obtained an order for your divorce.

While having sex with someone else might constitute adultery, the court will not care whether you've committed adultery or not. As far as the courts are concerned, if your relationship is over, go ahead and do what you like. No one apart from your ex and your in-laws is likely to criticize you for it.

====Can it be a ground of divorce?====

You cannot sue for divorce based on your own adultery. Now, if it's your spouse who has had sex with someone other than you following separation, you can use his or her adultery to get a divorce as long as you haven't already claimed a divorce for another reason like separation.

===New relationships===

New romantic relationships are treated in exactly the same way as new sexual relationships: the courts will not normally be concerned with a new relationship unless your new partner could somehow be seen as a genuine risk to the children.

Entering into a new relationship will not usually have an impact on how the care of the children should be managed and the amount of child support to be paid, and it will never have an impact on whether spousal support should be paid or how your property and debt should be divided. The court does not look at this sort of conduct in determining these issues. Besides, most separated spouses find themselves in new relationships before they are divorced.

====What about the kids?====

As a general rule, people should be a bit careful about exposing the children to new relationships. It can be very confusing to deal with the idea of parents separating and then have to cope with the idea of a parent being involved with some stranger who appears to be stepping into the shoes of the other parent.

You should take a lot of care in deciding how and when the children are introduced to new relationships. In general, older children are more likely to understand the new relationship; younger children are more apt to be confused by the new relationship, especially when the new person tries to "parent" the children themselves. Whether we like it or not, society teaches children a very Norman Rockwell/Hallmark Cards view of life: there are two parents, those parents love each other very much, and those parents are supposed to be together always. You should ask any new partner to be sensitive to these issues and to avoid presenting him- or herself to the children as an alternate parent.

====What if there are a lot of "new" relationships?====

Sometimes a newly separated spouse feels the need to go out and explore his or her options, so to speak, and engages in a series of short-term relationships. This will be very difficult for children of all ages to deal with, if they're aware it's going on. It's one thing to have your parents' relationship break up, which is difficult enough to deal with, but to be introduced to a parade of new people that a parent appears to be romantically involved with can be enormously confusing, and potentially lead to resentment and an alignment with the other parent.

In general, you shouldn't introduce your children to a new partner unless you are sure of the new relationship and expect to be in it for a good long while. If you're not sure about the longevity of the new relationship, be safe rather than sorry and don't introduce your children to your new partner until you're positive the new relationship will last.

If you are the other parent, you may want to ask for an order or an agreement requiring the parent involved in the new relationship to be in that relationship for a certain amount of time — say five or six months at a minimum — before he or she introduces the children to the new person. That being said, while it is entirely reasonable to be concerned about the impact of the new relationship on the children, some caution is suggested. Before you interfere with things, make sure that your concerns about the children are well-founded and based on their interests rather than on your own emotional reaction to your ex's new relationships.

===Becoming an unmarried spouse===

Someone who is separated but still married can become a spouse in an unmarried relationship. Not everyone is in a rush to get a divorce once a marriage breaks down, and some people don't get around to getting a divorce until many years have passed since they separated.

If you are separated from your married spouse, you are still married and will continued to be married to that person until you get a divorce. If you enter into a new romantic relationship while you are separated, and live with the new person in a "marriage-like relationship" for more than two years or have a child with that person, you will be considered to be in an unmarried spousal relationship; it doesn't matter whether you're divorced or not.

If you find that you're married and also in a new relationship that qualifies as a spousal relationship:

*you may have an obligation to pay child support for your partner's children as a stepparent,
*you will have an obligation to support any children you and your partner have together,
*you may have an obligation to pay spousal support to your partner, and
*there may be family property and family debt that you might be required to share with your partner.

These obligations are in addition to whatever obligations you have to your married spouse and any children from your marriage.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/840g Estate Administration Act]''
* ''[http://canlii.ca/t/84g0 Wills Variation Act]''

===Links===

* [http://clicklaw.bc.ca/resource/1640 Legal Services Society’s Family Law Website: Separation]

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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Separation and the Law

2017-08-02T21:09:26Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]] and [[Thomas Wallwork]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}Separation usually signals the breakdown of a married or unmarried relationship. It can be one of the most traumatic stages in the conclusion of a relationship, but it can also lead to reconciliation and the resumption of life together as a committed couple. Separation occurs when one or both spouses decide that their relationship is over and say so; there's no need to hire a lawyer or to seek the approval of a judge.

This section discusses the legal aspects of separation, the rules relating to reconciliation, and some of the other issues you may want to consider once you have separated or have decided to separate. The information applies to married spouses and unmarried spouses. It also applies to same sex couples.

This section will also address some common questions about sex and new relationships after separation. The next section, [[Separating Emotionally]], talks about the emotional dimensions of separation and how those emotional issues can influence the resolution of the legal issues.

==Introduction==

Although many people move out when they separate, others separate and remain living under the same roof. A physical separation is not necessary to separate; there must simply be an intention to end the relationship and the intimacies and mutual support that a committed relationship usually involves.

Often the decision to separate is made by both spouses, but it only takes one spouse to decide to end a relationship, and a spouse's decision to end a relationship doesn't require the consent of the other spouse.

Some people go to family law lawyers to get a "legal separation." Separation is accomplished, in most cases, by simply leaving the family home with the intention of living separate and apart, although technically speaking it isn't necessary to move out at all. Once you or your spouse has left the family home or announced that the marriage is at an end, you're separated. There are no special legal documents to sign or file in court to become separated, and there is no such thing as a legal separation in British Columbia.

Everyone is entitled to separate if they wish to end a relationship, and you don't need to see a lawyer to do so; the function of the family law lawyer is to assist in the resolution of the issues arising from the breakdown of the relationship.

Now, to be fair, what people often mean by legal separation is a ''separation agreement''. This is something else altogether. A separation agreement is a contract that a couple use to record their agreement about things like how the children will be cared for, how their property will be shared, and how child support and spousal support will be paid. Separation agreements are not always necessary, and you can't be forced to sign a separation agreement.

You can find more information about separation agreements in the chapter [[Family Law Agreements]] within the section [[Separation Agreements]]. You can find out more about preparing to separate in [[How Do I Prepare for Separation?]], located in the ''How Do I?'' section of this resource. Look under Marriage, Separation & Divorce.

===The date of separation===

Under the old ''[[Family Relations Act]]'', married spouses rarely argued about when they separated. The issue was sometimes important for unmarried spouses because their ability to ask for spousal support depended on whether they started a court proceeding within one year of the date of separation.

Under the new ''[[Family Law Act]]'', the date of separation has become very important for both married and unmarried spouses.

In general, the date of separation will have the following effects:

*each spouse becomes enttiled to a half-interest in all family property, whether that property is owned jointly or in the name of the other spouse only;
*the spouses each become responsible (as between the spouses) for one half of family debts;
*any property either spouse obtains after the date of separation is their own separate property, and not family property;
*any debt either spouse incurs after the date of separation is that spouse's sole responsibility;
*unmarried (ie. common-law) spouses have two years past the ''date of separation'' to start a claim in court for division of family property, spousal support, or sharing of family debts, if they cannot otherwise agree;
*married spouses have two years from the date of their ''divorce'' to bring claims in court for division of family property, spousal support, or division of debts.

The [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]] chapter talks about the first four issues in more detail; the [[Spousal Support]] chapter talks about the last issue.

Spouses do not need to move out in order to be separated. What's needed is for at least one spouse to reach the conclusion that the relationship is over, to say as much to the other spouse, and then begin behaving as if the relationship is over. That usually means stopping behaving like a couple, stopping sleeping together, stopping doing chores and tasks for each other, and so on. Section 3(4) of the ''Family Law Act'' talks about separation:

<blockquote><tt>For the purposes of this Act,</tt></blockquote>
<blockquote><blockquote><tt>(a) spouses may be separated despite continuing to live in the same residence, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the court may consider, as evidence of separation,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.</tt></blockquote></blockquote></blockquote>

This is helpful, because the old ''Family Relations Act'' didn't talk about separation in any detail. However, the phrase in s. 3(4)(b), "the court may consider," suggests that this section isn't a comprehensive listing of things the court should consider, and the cases about separation are still very helpful. Here are some of the highlights:

''Herman v. Herman'', Nova Scotia Supreme Court, 1969:

<blockquote>"[A]s long as the spouses treat the parting or absence, be it long or short, as temporary and not permanent, the couple is not living separately even though physically it is living apart. In order to come within the clear meaning of the words 'separate and apart' in the statute, there must need be not only a physical absence one from the other, but also a destruction of the consortium vitae or as the ''Act'' terms it, marriage breakdown."</blockquote>

''Hills v. Hills'', Nova Scotia Supreme Court, 1969:

<blockquote>"[T]he words 'living separate' connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other."</blockquote>

''McDorman v. McDorman'', New Brunswick Supreme Court, 1972:

<blockquote>"While the mere living separate and apart of the spouses may not be conclusive of the fact that there has been a permanent breakdown of the marriage, especially in cases where the separation may have been brought about … by enforced hospitalization … all of the circumstances accompanying such separation must be considered in determining whether or not it has in fact led to a permanent marriage breakdown."</blockquote>

''Lachman v. Lachman'', Ontario Court of Appeal, 1970:

<blockquote>"A marital relationship is broken down when one only of the spouses is without the intent for it to subsist."</blockquote>

It's important to know that the Canada Revenue Agency has its own definition of separation, and requires people to have lived separate and apart for 90 days before considering them to actually be separated; once the 90-day period is over, the date of separation is the date the couple began to live separate and apart.

===Being separated while living together===

It is possible to separate and remain living under the same roof as your spouse. People sometimes do this when they simply cannot afford to make ends meet while maintaining separate homes or when neither spouse wants to leave the home and the children.

In order for the courts to recognize this form of separation as a separation, the spouses must live as if they have completely ended the romantic aspect of their relationship. This usually includes sleeping in separate beds in separate rooms, opening separate bank accounts and closing joint accounts, separately performing household chores like laundry and cooking, not going out as a couple, and so on. Either way, the spouses must stop behaving as if they are a couple.

Because the date of separation can sometimes be hard to pin down when separated spouses continue to live under the same roof, it can be very helpful to make some sort of record of the date that separation occurred. Sending a letter or email to your spouse to confirm separation might be a good idea; make sure you keep a copy.

===Desertion===

This ground for divorce has been abolished.

Instead, s. 8(1)(2)(a) of the ''Divorce Act (Canada)'' allows either spouse to apply for a divorce on the ground that the spouses have been living separate and apart for at least a year, and that there is no chance of reconciliation.

===Separation and children===

Under s. 39(1) of the ''Family Law Act'', a parent is a guardian of their child both while the parents live together and remain guardians even after the parents separate.

Separation can be extraordinarily difficult on children. In most registries of the Provincial Court, couples are required to attend a Parenting After Separation program. This program, which is brief and free, teaches parents how to communicate with one another after separation and how to talk to their children about separation. It is an extremely useful program, and one which I encourage all separating parents to take. You can find more information about this program and other issues relating to children and separation in the [[Children in Family Law Matters|Children]] chapter, in the section [[Parenting after Separation]].

Separation is, of course, also difficult for the adults who are separating. You can find more information about the emotional dimensions of separation in the next section of this chapter, [[Separating Emotionally]].

==Reconciliation==

For some couples, a period of separation does not sound their relationship's death knell. For some, a period of separation can be a time for rebuilding a relationship and can become a healthy break that rejuvenates and revitalizes a marriage.

===Married spouses===

The ''[[Divorce Act]]'' contains a number of provisions intended to discourage divorce and encourage spouses to remain together. Section 8(3)(b) of the ''Act'' provides that:

<blockquote><tt>A period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated</tt></blockquote>
<blockquote><blockquote><tt>(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse's own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.</tt></blockquote></blockquote>

In other words, a married couple may attempt to reconcile and can resume a cohabiting relationship for a maximum of 90 days without stopping the clock on separation as a ground of divorce. If a couple have lived together for more than 90 days since the first separation, the clock will start again at the end of the last period in which they lived together as a married couple.

The 90 days needn't be consecutive in order to stop the clock. If you are claiming separation as the ground of your divorce, you cannot have resumed your relationship with your spouse for a total of 90 days within the one-year period of separation.

===Unmarried spouses===

Because unmarried couples don't need to get divorced, the ''[[Family Law Act]]'' has no similar provisions about separation and attempts at reconciliation, except in relation to property. Section 83(1) says this:

<blockquote><tt>For the purposes of this Part, spouses are not considered to have separated if, within one year after separation, </tt></blockquote>
<blockquote><blockquote><tt>(a) they begin to live together again and the primary purpose for doing so is to reconcile, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) they continue to live together for one or more periods, totalling at least 90 days. </tt></blockquote></blockquote>

These provisions are important because the date of separation is the date when new property and new debt stop being shared family property and family debt and start being each spouse's separate property and debt.

==Things to think about after separation==

Once you've separated, there a number of things you may want to do, change, or adjust to reflect the new circumstances of your relationship with your spouse.

===Bank accounts and credit cards===

You should remove your name from any joint bank accounts or credit cards. If your spouse has signing authority or debiting authority on any of your accounts or credit cards, you should consider cancelling their authority.

Credit cards, loans and lines of credit can often be capped by telling the bank to make the accounts ''deposit only''. This will mean that no more withdrawals can be made and the only transactions that can take place are deposits. You could also tell the bank to reduce the credit limit to the current balance on the account.

===Insurance policies, pensions and RRSPs===

You may wish to change the beneficiary of your insurance policies, pensions, and RRSP accounts if your spouse is the present beneficiary. If your spouse is the irrevocable beneficiary on such an account, your bank or insurance company may require your spouse's consent to remove their name as a beneficiary.

===Jointly owned real estate===

Most spouses own real estate as “joint tenants”. The essential feature of this type of ownership is that if one of you dies, then the surviving party will own the entire property. This does '''not''' change as a result of your separation.

There are reasons for and against keeping the ownership as joint tenants. If you do not want to risk the property becoming entirely owned by your spouse in case of your death, then you can change the type of ownership by transferring your interest to yourself. This change must be registered with the Land Title Office.

You should see a real estate lawyer for help in changing the way that you own the real estate.

===Wills===

If you separate and your spouse dies, you cannot rely on your spouse's will. Unless the will says otherwise, any gift or appointment the deceased spouse made to you is revoked at the date of your separation. If you want to make a claim to property owned by your spouse's estate, or for support from your spouse's estate, then you must sue your spouse's estate under the ''[http://canlii.ca/t/8q3k Family Law Act]'' and the ''[http://canlii.ca/t/7vbw Divorce Act]''.

If you still want your spouse to receive a gift or appointment through your will, you must update your will and specify that the gift or appointment should proceed even after your separation.

You should see a wills and estates lawyer for help in making or changing a will.

===Powers of attorney and other authorizations===

Under the ''[http://canlii.ca/t/849l Power of Attorney Act]'', if you are unmarried, any power of attorney made by you and your spouse terminates when your marriage or marriage-like relationship ends. However, if you ''are'' married, the power of attorney may only terminate when you get an order for divorce. The courts still need to interpret this section.

No matter what your relationship status is, if you want to be sure that your power of attorney has been terminated, you need to prepare a written revocation and deliver a copy to all financial institutions where you have an account, as well as a copy to your spouse and anybody else you have appointed as your attorney. Always keep records of your revocation, and how and when you delivered the revocation.

If you do still want your former spouse to be able to act as your attorney after you separate, then you should prepare a new power of attorney to make sure that they have a valid power of attorney.

If you wish to revoke an existing power of attorney or other authorization or to create a new one, you should speak with a wills and estates lawyer to have the proper documents drawn up.

===Medical and dental insurance===

Normally, spouses and children are still covered by the other spouse's health insurance for a period of time after separation. Coverage for children usually ends once the children turn 19; coverage for married spouses almost always ends on divorce, but coverage for unmarried spouses may end when the parties stop living together. You should contact the people who administer your insurance plan for more information as different plans have different rules about the eligibility of spouses as beneficiaries following separation.

For most people, maintaining spousal benefits cost little or nothing. If that's the case, consider leaving your spouse's coverage in place for as long as your plan allows; it will appear rather mean-spirited if you cancel your spouse's benefits. Whatever you do, don't cancel the children's benefits!

===Finances and assets===

When you separate, make sure you take with you or secure the following items:

*your financial information, including your credit card statements, bank statements, RRSP and investment account statements, and so forth,
*your MSP card and your private medical insurance card, if you have one,
*your children's birth certificates,
*your immigration or citizenship documents, if you are new to Canada, and
*your passport and your children's passports.

You may also wish to take a fair share, half or less than half, of the household property such as the children's clothing, the furniture, and your personal effects. However, I would really encourage you to think twice about this and proceed with caution. Yes, the odds are quite good that half the common household property is yours, but the last thing you want to do after separation is to ramp up the tension any further. If you absolutely cannot live without the dish set, then take the dish set, but otherwise it may be best to leave the dish set at home. Nothing looks worse than the spouse who takes half the glasses, half the cutlery, half of a dining room suite and half of the living room furniture.

Now, this may seem a bit pessimistic, but you should also take a list of all of the property your spouse owns in their own name and of all the things the two of you own jointly. A detailed list, including balances and account numbers and serial numbers, would be ideal, but even something as simple as a list of the financial and other institutions you and your spouse deal with will do. You can collect that information by writing down the names and addresses of the people who are sending your spouse statements; you don't even have to open the envelopes. This information could prove invaluable if you wind up in an argument about who owns what or the extent of the family property and family debt.

==Sex and new relationships after separation==

A lot of readers have questions about the consequences of sex after separation. The discussion that follows is about sex with spouses, sex with people other than spouses, new relationships, and how a married spouse can be in a unmarried spousal relationship with someone else while still being married.

===Sex with spouses===

There are, generally speaking, no legal consequences to having sex with your spouse after you've separated. While it might cause some emotional difficulties — such as prolonging the amount of time it takes to recover from a relationship that's broken down — there is nothing legally wrong with having sex with your spouse. Most people would say that there's nothing morally wrong with it either.

Having sex with your spouse after separation will not have an impact on how the care of the children is managed, the amount of child support to be paid, whether spousal support should be paid, or how your property and debt should be divided. The court does not look into this sort of conduct in determining these issues.

However, two things that married spouses probably need to think about are these:

*'''Reconciliation:''' While simply having sex with your spouse won't count toward the 90-day period of reconciliation described above, it may if you begin to live with each other while you're doing it.
*'''Divorces based on adultery:''' If you are making a claim for a divorce based on your spouse's adultery, and you have sex with your spouse after you start the claim, you could be considered to have forgiven your spouse for the adulterous conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on their adultery. The same principle would probably also apply to divorce claims based on cruelty.

===Sex with other people===

Just like having sex with your spouse after you've separated, there's nothing wrong with having sex with someone else after you've separated. Separation is partly defined as leaving a spouse with the intention of ending the relationship. Once you've separated, the court will consider the romantic, marriage-like aspect of the relationship to have concluded, and your obligation to remain monogamous along with it. Married spouses won't be divorced until they get a court order, of course, but after separation the marital aspects of their relationships, and the attendant expectations of monogamy, will be considered to be at an end.

Having sex with someone else will not have an impact on how the care of the children should be managed, the amount of child support to be paid, whether spousal support should be paid, or how the family property and debt should be divided. The court does not consider this sort of conduct in determining these issues.

====Is it adultery?====

Adultery is only an issue for married spouses. Technically speaking, it is in fact adultery to have sex with anyone other than your spouse for so long as you are married. You will remain married until you have obtained an order for your divorce.

While having sex with someone else might constitute adultery, the court will not care whether you've committed adultery or not. As far as the courts are concerned, if your relationship is over, go ahead and do what you like. No one apart from your ex and your in-laws is likely to criticize you for it.

====Can it be a ground of divorce?====

You cannot sue for divorce based on your own adultery. Now, if it's your spouse who has had sex with someone other than you following separation, you can use their adultery to get a divorce as long as you haven't already claimed a divorce for another reason like separation.

===New relationships===

New romantic relationships are treated in exactly the same way as new sexual relationships: the courts will not normally be concerned with a new relationship unless your new partner could somehow be seen as a genuine risk to the children.

Entering into a new relationship will not usually have an impact on how the care of the children should be managed and the amount of child support to be paid, and it will never have an impact on whether spousal support should be paid or how your property and debt should be divided. The court does not look at this sort of conduct in determining these issues. Besides, most separated spouses find themselves in new relationships before they are divorced.

====What about the kids?====

As a general rule, people should be a bit careful about exposing the children to new relationships. It can be very confusing to deal with the idea of parents separating and then have to cope with the idea of a parent being involved with some stranger who appears to be stepping into the shoes of the other parent.

You should take a lot of care in deciding how and when the children are introduced to new relationships. In general, older children are more likely to understand the new relationship; younger children are more apt to be confused by the new relationship, especially when the new person tries to parent the children themselves. Whether we like it or not, society teaches children a very Norman Rockwell/Hallmark Cards view of life: there are two parents, those parents love each other very much, and those parents are supposed to be together always. You should ask any new partner to be sensitive to these issues and to avoid presenting themself to the children as an alternate parent.

====What if there are a lot of new relationships?====

Sometimes a newly separated spouse feels the need to go out and explore their options, so to speak, and engages in a series of short-term relationships. This will be very difficult for children of all ages to deal with, if they're aware it's going on. It's one thing to have your parents' relationship break up, which is difficult enough to deal with, but to be introduced to a parade of new people that a parent appears to be romantically involved with can be enormously confusing, and potentially lead to resentment and an alignment with the other parent.

In general, you shouldn't introduce your children to a new partner unless you are sure of the new relationship and expect to be in it for a good long while. If you're not sure about the longevity of the new relationship, be safe rather than sorry and don't introduce your children to your new partner until you're positive the new relationship will last.

If you are the other parent, you may want to ask for an order or an agreement requiring the parent involved in the new relationship to be in that relationship for a certain amount of time — say five or six months at a minimum — before they introduce the children to the new person. That being said, while it is entirely reasonable to be concerned about the impact of the new relationship on the children, some caution is suggested. Before you interfere with things, make sure that your concerns about the children are well-founded and based on their interests rather than on your own emotional reaction to your ex's new relationships.

===Becoming an unmarried spouse===

Someone who is separated but still married can become a spouse in an unmarried relationship. Not everyone is in a rush to get a divorce once a marriage breaks down, and some people don't get around to getting a divorce until many years have passed since they separated.

If you are separated from your married spouse, you are still married and will continued to be married to that person until you get a divorce. If you enter into a new romantic relationship while you are separated, and live with the new person in a marriage-like relationship for more than two years or have a child with that person, you will be considered to be in an unmarried spousal relationship; it doesn't matter whether you're divorced or not.

If you find that you're married and also in a new relationship that qualifies as a spousal relationship:

*you may have an obligation to pay child support for your partner's children as a stepparent,
*you will have an obligation to support any children you and your partner have together,
*you may have an obligation to pay spousal support to your partner, and
*there may be family property and family debt that you might be required to share with your partner.

These obligations are in addition to whatever obligations you have to your married spouse and any children from your marriage.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/840g Estate Administration Act]''
* ''[http://canlii.ca/t/84g0 Wills Variation Act]''

===Links===

* [http://clicklaw.bc.ca/resource/1640 Legal Services Society’s Family Law Website: Separation]

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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Separating and Getting Divorced

2017-08-02T21:00:49Z

Penny Goldsmith:

{{JPBOFL Start Chapter
|Related = [[Separation]]{{·}}[[Separating Emotionally]]{{·}}[[Divorce]]
}}
{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]] and [[Thomas Wallwork]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}A couple ''separates'' when one or both spouses decide that their relationship is over and then take steps to act on that decision. When an unmarried couple separates, their relationship is over. The relationship of married spouses, on the other hand, isn't legally over until they are divorced, one of them dies, or their marriage is annulled.

This chapter begins by taking a quick look at separation and divorce, and talks about a few urban myths about separation and divorce. The following sections look in more detail at the [[Separation|legal and practical aspects of separation]] and the [[Separating Emotionally|emotional dimensions of separation]]. The do-it-yourself divorce process is reviewed in a fair amount of detail in the [[Divorce]] section at the end of this chapter.

Everything in this chapter applies just as much to same-sex couples as it does to opposite-sex couples.

==Introduction==

The rules about separation and divorce are fairly straightforward, despite some common misunderstandings.

Separation simply means making the decision that a relationship has broken down. You don't have to move out to separate. You just have to tell your spouse that things have come to an end and that you'd like to end the relationship, and then act on that decision.

Divorce is the legal termination of a married relationship. A divorce requires an order of the court ending the marriage. A couple who have been separated for a dozen years are still married, and they'll remain married until they get a court order for their divorce. Unmarried spouses do not need to get divorced; their relationships are over when they separate.

===Separation===

Separation is simple: the parties must simply start living "separate and apart" from one another, whether under the same roof or in separate homes. Contrary to popular opinion, you do not need to see a lawyer or file some sort of court document to obtain a separation. You just need to call it quits, tell the other spouse that it's over, and take whatever steps are necessary to put an end to the partnership qualities of your relationship.

For married couples, separation signals the breakdown of their relationship but does not release them from the bonds of their marriage.

For unmarried couples, including unmarried couples who qualify as spouses under the ''[[Family Law Act]]'', separation is all that's required to end the relationship.

The date a couple separates is very, '''very''' important, because the date of separation is a very important element in determining child support, spousal support, and the division of property and debt.

===Annulment===

If one or more of the requirements of a valid marriage are lacking, the marriage may be annulled or cancelled. To obtain an annulment, one of the parties must make an application for a declaration that the marriage is void. A marriage may be annulled if:

*a female spouse was under the age of 12 or a male spouse was under the age of 14 (the common law ages of puberty),
*one or both of the spouses did not consent to the marriage,
*a male spouse is impotent or a female spouse is sterile going into the marriage,
*the marriage cannot be consummated,
*the marriage was a sham, or
*one or both of the spouses agreed to marry as a result of fraud or misrepresentation.

You can find more information about void marriages, voidable marriages, and annulment in the chapter [[Family Relationships]], in the
section [[Marriage & Married Spouses]].

===Divorce===

Divorce is the legal end of a valid marriage. To obtain a divorce, one spouse must sue the other in the [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court], and in general at least one of the spouses must have been "ordinarily resident" in British Columbia for the preceding year. To qualify for a divorce order, a spouse must prove that the marital relationship has broken down for one of three reasons:

#separation for a period of not less than one year,
#adultery, or
#mental or physical cruelty.

It is possible to oppose an application for a divorce order, although this rarely happens. In general, once one of the grounds for divorce has been established, the courts will allow the divorce application, despite the objections of the other spouse.

For various reasons, getting divorced can sometimes be a low priority in some people's lives. Frankly, most people have better things to do with their time than filing the paperwork necessary to get divorced, especially if that's the only legal issue to deal with. With the passage of time, spouses can lose track of each other, and it sometimes happens when one spouse decides to move on the divorce issue the other spouse can't be found, and the divorce order gets made without the other spouse being told about it! If you're not sure if you're divorced, see [[How Do I Find Out if I'm Divorced?]] It's located in the section ''Marriage, Separation & Divorce'' in the ''How Do I?'' part of this resource.

==A few surprisingly common misunderstandings==

A lot of people seem to labour under certain misconceptions about what marriage, separation and divorce actually involve. Part of these misunderstandings, I'm sure, come from television and movies; others are urban myths that get spread over a few pints at the pub.

===Separation and the "legal separation"===

There is no such thing as a "legal separation" in British Columbia, nor is it possible to be "legally separated." Whether you're in an unmarried relationship or a formal marriage, you are separated the moment you decide that the relationship is over. That's it, there's no magic to it. When you or your partner announces that the relationship is over and there's no chance of getting back together, boom, you're separated.

To be crystal clear:

*you do not need to "file for separation" to be separated (in fact, there's no such thing in British Columbia as "filing for separation," despite what you might see on the websites of the people who sell do-it-yourself legal kits),
*there are no court documents or other papers you have to sign to be separated, and
*you don't need to appear before a judge, lawyer, shaman or anyone else to be separated.

To be separated, you just need to decide that your relationship is over and say so.

====Separation and remarriage====

The fact that a married couple are separated isn't enough to let either of the spouses remarry, however. You must be formally divorced by an order of the court in order to remarry. If you do remarry without being divorced from the first marriage, the new marriage will be invalid.

====Separation and new spousal relationships====

On the other hand, the fact that a married couple has separated won't prevent you from having new relationships, including a new relationship that would qualify as an unmarried spousal relationship. Technically, this is adultery, but no one is likely to care. The [[Separation]] section of this chapter has a lot of information about new relationships after separation.

===Divorce and the "automatic divorce"===

As far as divorce is concerned, a court must make an order for your divorce or you'll never be divorced. You can have been separated from your spouse for twenty years, but unless a court has actually made an order for your divorce, you'll still be married. It'd be nice (and cheaper) if the passage of time gave rise to an automatic divorce, but it doesn't work that way.

====Divorce and separation agreements====

It is not true that you need to have a separation agreement to get a divorce. Separation agreements are helpful to record a settlement of the issues arising when a couple separates, like the division of assets or the payment of support and so forth, but they're not a requirement of the divorce process. You especially don't need a separation agreement if the only issue is whether you'll get a divorce order or not.

====Divorce after death====

It is not true that you remain married if your spouse dies. Once that happens, your marriage is at an end. You do not need to obtain a divorce.

====Divorce for want of sex====

It is also not true that a lack of sex in your relationship automatically ends your marriage, allows the marriage to be declared void, or is otherwise a ground of divorce. Sex has very little to do with divorce, just as it often has little to do with marriage. A lack of sex may spell the end of a relationship and spur a couple's separation, but at law whether you and your spouse are having sex or not is irrelevant.

The one exception to this last rule has to do with the ''consummation'' of the marriage, and this exception doesn't mean what most people think it means. A marriage does not need to be consummated to be a valid, binding marriage. In order to escape a marriage on this ground, you or your partner must, I kid you not, have an "invincible repugnance" to the act of sexual intercourse or some physical condition that makes sex impossible.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===
* [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Legal Services Society’s Family Law Website: Divorce and separation basics]
* [http://clicklaw.bc.ca/resource/2291 Legal Services Society's Family Law Website: Proving you're separated if you and your spouse still live together]

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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Separating and Getting Divorced

2017-08-02T21:00:22Z

Penny Goldsmith:

{{JPBOFL Start Chapter
|Related = [[Separation]]{{·}}[[Separating Emotionally]]{{·}}[[Divorce]]
}}
{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]] and [[Thomas Wallwork]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}A couple ''separates'' when one or both spouses decide that their relationship is over and then take steps to act on that decision. When an unmarried couple separates, their relationship is over. The relationship of married spouses, on the other hand, isn't legally over until they are divorced, one of them dies, or their marriage is annulled.

This chapter begins by taking a quick look at separation and divorce, and talks about a few urban myths about separation and divorce. The following sections look in more detail at the [[Separation|legal and practical aspects of separation]] and the [[Separating Emotionally|emotional dimensions of separation]]. The do-it-yourself divorce process is reviewed in a fair amount of detail in the [[Divorce]] section at the end of this chapter.

Everything in this chapter applies just as much to same-sex couples as it does to opposite-sex couples.

==Introduction==

The rules about separation and divorce are fairly straightforward, despite some common misunderstandings.

Separation simply means making the decision that a relationship has broken down. You don't have to move out to separate. You just have to tell your spouse that things have come to an end and that you'd like to end the relationship, and then act on that decision.

Divorce is the legal termination of a married relationship. A divorce requires an order of the court ending the marriage. A couple who have been separated for a dozen years are still married, and they'll remain married until they get a court order for their divorce. Unmarried spouses do not need to get divorced; their relationships are over when they separate.

===Separation===

Separation is simple: the parties must simply start living ''separate and apart'' from one another, whether under the same roof or in separate homes. Contrary to popular opinion, you do not need to see a lawyer or file some sort of court document to obtain a separation. You just need to call it quits, tell the other spouse that it's over, and take whatever steps are necessary to put an end to the partnership qualities of your relationship.

For married couples, separation signals the breakdown of their relationship but does not release them from the bonds of their marriage.

For unmarried couples, including unmarried couples who qualify as spouses under the ''[[Family Law Act]]'', separation is all that's required to end the relationship.

The date a couple separates is very, ''very'' important, because the date of separation is a very important element in determining child support, spousal support, and the division of property and debt.

===Annulment===

If one or more of the requirements of a valid marriage are lacking, the marriage may be annulled or cancelled. To obtain an annulment, one of the parties must make an application for a declaration that the marriage is void. A marriage may be annulled if:

*a female spouse was under the age of 12 or a male spouse was under the age of 14 (the common law ages of puberty),
*one or both of the spouses did not consent to the marriage,
*a male spouse is impotent or a female spouse is sterile going into the marriage,
*the marriage cannot be consummated,
*the marriage was a sham, or
*one or both of the spouses agreed to marry as a result of fraud or misrepresentation.

You can find more information about void marriages, voidable marriages, and annulment in the chapter ''[[Family Relationships]]'', in the
section [[Marriage & Married Spouses]].

===Divorce===

Divorce is the legal end of a valid marriage. To obtain a divorce, one spouse must sue the other in the [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court], and in general at least one of the spouses must have been ''ordinarily resident'' in British Columbia for the preceding year. To qualify for a divorce order, a spouse must prove that the marital relationship has broken down for one of three reasons:

#separation for a period of not less than one year,
#adultery, or
#mental or physical cruelty.

It is possible to oppose an application for a divorce order, although this rarely happens. In general, once one of the grounds for divorce has been established, the courts will allow the divorce application, despite the objections of the other spouse.

For various reasons, getting divorced can sometimes be a low priority in some people's lives. Frankly, most people have better things to do with their time than filing the paperwork necessary to get divorced, especially if that's the only legal issue to deal with. With the passage of time, spouses can lose track of each other, and it sometimes happens when one spouse decides to move on the divorce issue the other spouse can't be found, and the divorce order gets made without the other spouse being told about it! If you're not sure if you're divorced, see [[How Do I Find Out if I'm Divorced?]] It's located in the section Marriage, Separation & Divorce in the ''How Do I?'' part of this resource.

==A few surprisingly common misunderstandings==

A lot of people seem to labour under certain misconceptions about what marriage, separation and divorce actually involve. Part of these misunderstandings, I'm sure, come from television and movies; others are urban myths that get spread over a few pints at the pub.

===Separation and the "legal separation"===

There is no such thing as a "legal separation" in British Columbia, nor is it possible to be "legally separated." Whether you're in an unmarried relationship or a formal marriage, you are separated the moment you decide that the relationship is over. That's it, there's no magic to it. When you or your partner announces that the relationship is over and there's no chance of getting back together, boom, you're separated.

To be crystal clear:

*you do not need to "file for separation" to be separated (in fact, there's no such thing in British Columbia as "filing for separation," despite what you might see on the websites of the people who sell do-it-yourself legal kits),
*there are no court documents or other papers you have to sign to be separated, and
*you don't need to appear before a judge, lawyer, shaman or anyone else to be separated.

To be separated, you just need to decide that your relationship is over and say so.

====Separation and remarriage====

The fact that a married couple are separated isn't enough to let either of the spouses remarry, however. You must be formally divorced by an order of the court in order to remarry. If you do remarry without being divorced from the first marriage, the new marriage will be invalid.

====Separation and new spousal relationships====

On the other hand, the fact that a married couple has separated won't prevent you from having new relationships, including a new relationship that would qualify as an unmarried spousal relationship. Technically, this is adultery, but no one is likely to care. The [[Separation]] section of this chapter has a lot of information about new relationships after separation.

===Divorce and the "automatic divorce"===

As far as divorce is concerned, a court must make an order for your divorce or you'll never be divorced. You can have been separated from your spouse for twenty years, but unless a court has actually made an order for your divorce, you'll still be married. It'd be nice (and cheaper) if the passage of time gave rise to an automatic divorce, but it doesn't work that way.

====Divorce and separation agreements====

It is not true that you need to have a separation agreement to get a divorce. Separation agreements are helpful to record a settlement of the issues arising when a couple separates, like the division of assets or the payment of support and so forth, but they're not a requirement of the divorce process. You especially don't need a separation agreement if the only issue is whether you'll get a divorce order or not.

====Divorce after death====

It is not true that you remain married if your spouse dies. Once that happens, your marriage is at an end. You do not need to obtain a divorce.

====Divorce for want of sex====

It is also not true that a lack of sex in your relationship automatically ends your marriage, allows the marriage to be declared void, or is otherwise a ground of divorce. Sex has very little to do with divorce, just as it often has little to do with marriage. A lack of sex may spell the end of a relationship and spur a couple's separation, but at law whether you and your spouse are having sex or not is irrelevant.

The one exception to this last rule has to do with the ''consummation'' of the marriage, and this exception doesn't mean what most people think it means. A marriage does not need to be consummated to be a valid, binding marriage. In order to escape a marriage on this ground, you or your partner must, I kid you not, have an invincible repugnance to the act of sexual intercourse or some physical condition that makes sex impossible.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===
* [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Legal Services Society’s Family Law Website: Divorce and separation basics]
* [http://clicklaw.bc.ca/resource/2291 Legal Services Society's Family Law Website: Proving you're separated if you and your spouse still live together]

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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Having Children with Assisted Reproduction

2017-08-02T19:40:42Z

Penny Goldsmith:

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}

Once upon a time, not all that long ago in fact, sex was the only way to have a child. Sometimes, however, a child was not the participants' desired outcome and rules were developed to help the courts figure out who a child's father was when paternity was denied.

These days, with the help of technology, it's possible for a couple who want a child to have that child using donated eggs or sperm or with the help of a surrogate mother. The question now is less often about who isn't a parent than who is.

This section talks about assisted reproduction and the rules that determine who is a parent under the ''[[Family Law Act]]'' when parentage is denied, and when a child has been conceived through assisted reproduction.

==Determining parentage==

Part 3 of the provincial ''Family Law Act'' provides a comprehensive scheme for determining the parentage of children that applies for all legal purposes in British Columbia, including for family law disputes and wills and estates matters, except when parentage is determined under the ''[http://canlii.ca/t/84g5 Adoption Act]''. Section 24 says this:

<blockquote><tt>(1) For all purposes of the law of British Columbia,</tt></blockquote>
<blockquote><blockquote><tt>(a) a person is the child of his or her parents,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a child's parent is the person determined under this Part to be the child's parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the relationship of parent and child and kindred relationships flowing from that relationship must be as determined under this Part.</tt></blockquote></blockquote>
<blockquote><tt>(2) For the purposes of an instrument or enactment that refers to a person, described in terms of his or her relationship to another person by birth, blood or marriage, the reference must be read as a reference to, and read to include, a person who comes within the description because of the relationship of parent and child as determined under this Part.</tt></blockquote>

Section 26(1) says who a child's parents are presumed to be:

<blockquote><tt>On the birth of a child not born as a result of assisted reproduction, the child's parents are the birth mother and the child's biological father.</tt></blockquote>

Now it's usually quite obvious who the birth mother of a child is. It not always evident who the biological father is. A paternity test will resolve any uncertainty as to whether a particular man is the father of a particular child, and with today's technologies, the odds of an incorrect result are on the order of a thousandth of one percent. For a father, proving paternity can be essential to establishing a right to be involved in a child's life. For a mother, proving paternity can be an essential step in securing a child support order.

===The presumptions of fatherhood===

Only biological parents and people who are stepparents because they are the married or unmarried spouse of a parent are required to pay child support. When a man denies a responsibility to pay child support on the ground that he is not the child's father, the first thing the court will do is see whether he should be presumed to be the father because of the nature of his relationship with the child's mother.

Under s. 26(2) of the ''[[Family Law Act]]'', a man is presumed to be the biological father of a child in one of the following circumstances:

<blockquote><tt>(a) he was married to the child's birth mother on the day of the child's birth;</tt></blockquote>
<blockquote><tt>(b) he was married to the child's birth mother and, within 300 days before the child's birth, the marriage was ended</tt></blockquote>
<blockquote><blockquote><tt>(i) by his death,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) by a judgment of divorce, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) as referred to in section 21;</tt></blockquote></blockquote>
<blockquote><tt>(c) he married the child's birth mother after the child's birth and acknowledges that he is the father;</tt></blockquote>
<blockquote><tt>(d) he was living with the child's birth mother in a marriage-like relationship within 300 days before, or on the day of, the child's birth;</tt></blockquote>
<blockquote><tt>(e) he, along with the child's birth mother, has acknowledged that he is the child's father by having signed a statement under section 3 of the Vital Statistics Act</tt></blockquote>

Presumptions like these were once very important when there was no reliable way to scientifically verify that a particular man was the father of a child. These days, however, we do have the technology and a man who disputes paternity despite these presumptions can ask for an order that a parentage test be conducted. Without challenging these presumptions, however, the man will likely be required to pay child support for the benefit of the child.

===Parentage tests===

Under s. 33(2) of the ''[[Family Law Act]]'', the court may

<blockquote><tt>order a person, including a child, to have a tissue sample or blood sample, or both, taken by a medical practitioner or other qualified person for the purpose of conducting parentage tests</tt></blockquote>

Under s. 33(1) a parentage test can be a human leukocyte antigen test, a DNA test, or "any other test the court considers appropriate." These are your choices:

*'''Human leukocyte antigen tests:''' Human leukocyte antigen tests are a kind of advanced blood test that looks at the genetic markers on white blood cells to determine the likelihood that the child's antigens were inherited from a particular man. Their accuracy is northward of 96% but can be spoofed if the purported father has had a recent transfusion.
*'''Deoxyribonucleic acid tests:''' DNA tests look for overlaps in the child's unique genetic code with the genetic code from the purported father and the child's mother. Today's DNA tests deal with the probability of fatherhood in terms approaching absolute certainty; if a DNA test shows a man is probably the father, the odds that the test is wrong are about 0.0001%. Testing is performed on biological samples, most commonly blood samples. It is possible to have tests conducted based on mouth swabs.
*'''Chorionic villi sampling:''' This is a prenatal procedure that can be performed during the 10th to 13th week of pregnancy. It consists of a DNA test on a sample of the baby's placenta. It is an unpleasant procedure that must be conducted either through the mother's cervix or her abdominal wall.
*'''Amniocentesis:''' This is a prenatal procedure that can be performed during the 14th to 24th week of pregnancy. It consists of a DNA test on a sample of amniotic fluid drawn through the mother's abdominal wall.

The DNA of a child is a combination of the DNA of the child's mother and father. DNA tests compare the child's DNA to that of the father and mother, and provide a calculation of the odds that the man is the child's father. Because of the accuracy of DNA testing, a positive result will prove extremely convincing to a court. Unless you have a doctorate in genetics or convincing proof that a sample was tampered with, I don't recommend that you challenge the results of a DNA test. Save your money.

A number of companies in British Columbia, such as [http://www.genetrackcanada.com Genetrack Biolabs], [http://www.thednalab.com Maxxam Analytics] and [http://www.pro-adn.com Orchid PRO-DNA], will perform paternity tests at a cost of between $400 and $800 plus taxes.

===Arranging for a parentage test===

If the mother and the purported father agree to have a paternity test conducted, no order of the court is necessary. You simply contact the appropriate company and arrange to have blood or saliva samples taken and tested. The results will be delivered to you directly. These companies even offer home sampling kits at a somewhat lower rate.

Where the parties don't agree to a test, one of them, usually the alleged father, must make an application to court for an order that samples be taken from the parties and the child and that a paternity test be conducted under s. 33(2) of the ''Family Law Act''. Under s 33(3), the court can also make an order about who must pay for the cost of the test.

==Assisted reproduction==

Assisted reproduction relies on the assistance of, and often genetic contributions from, other people to create a child. It is necessary when:

*a single person wants to have a child,
*one or both people in an opposite-sex relationship are infertile or the woman is unable to carry a baby to term,
*a couple in a same-sex relationship want to have a child and they want the child to share in the genetic heritage of at least one of them, or
*a couple wish to include another person as the parent of their child.

Whatever circumstances are at hand, assisted reproduction inevitably involves of one or more of:

*the use of donated eggs,
*the use of donated sperm, and
*the cooperation of a woman who will carry the baby to term.

The 2004 federal ''[http://canlii.ca/t/7vzj Assisted Human Reproduction Act]'' regulates the scientific and commercial aspects of assisted reproduction. From a family law perspective, the important parts of this act make it illegal to sell eggs or sperm, and say that a surrogate mother can't be paid for her services but she can be compensated for her expenses.

The provincial ''[[Family Law Act]]'' lets people make agreements when they are having a child by assisted reproduction that say which of the parties to the agreement will and won't be a legal parent of the child. Under the act, a child can have up to five parents if everyone agrees: up to two people who intend to have the child; an egg donor; a sperm donor; and, a surrogate mother.

===Donors===

Under s. 24 of the ''Family Law Act'' the donor of eggs or sperm is not the parent of a child merely because of the donation, and may not be declared to be a parent of a child. This section is very important. It means that a person can donate eggs or sperm without worrying that they will be asked to pay child support down the road.

A donor can be a parent if the intended parents and the donor sign a written assisted reproduction agreement before the child is conceived that says that the donor will be a parent. Donors who are parents under an assisted reproduction agreement are parents for all purposes under the ''Family Law Act''; they are presumed to be the guardians of a child and may be required to pay child support for the benefit of the child.

===Surrogate mothers===

A surrogate mother is a birth mother who is presumed to be the parent of a child under ss. 26 and 27 of the ''Family Law Act''. However, a surrogate mother will not be a parent if the intended parents and the surrogate mother sign a written assisted reproduction agreement before the child is conceived that says that the surrogate mother will not be a parent.

Without an assisted reproduction agreement, the child's parents will be presumed to be the surrogate mother and the child's biological father, and the surrogate mother will be a parent for all purposes under the ''Family Law Act''.

===Assisted reproduction after death===
====What happens if the donor dies?====
People who aim to have children by assisted reproduction ― including through ''in vitro'' fertilization when no one other than the intended parents are involved ― often freeze eggs, sperm and embryos for future use. This is especially common where multiple attempts may be necessary to have a successful pregnancy. It sometimes happens that one of the people who provide the genetic material dies before a child is conceived.

Section 28 of the ''Family Law Act'' says that when the donor dies before the child is conceived and there is proof that the donor:

*consented to the use of the genetic material or embryo by his or her married or unmarried spouse,
*consented to being the parent of a child conceived after his or her death, and
*did not withdraw his or her consent before death,

the parents of a child conceived with the genetic material or embryo are the deceased donor and the donor's married or unmarried spouse.

====What happens if the intended parent dies?====
Sometimes circumstances can play out in unexpected ways. For instance, an intended parent designated under a surrogacy agreement may die before the child is born. As long as the child has been conceived, section 29 of the ''Family Law Act'' says that the intended parent will still be the parent in the eyes of the law, provided that:
* the surrogate mother gives her written consent to surrender the child to the executor or other person acting in the place of the deceased intended parents, and
*the executor or other person takes the child into their care.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84g5 Adoption Act]''
* ''[http://canlii.ca/t/7vzj Assisted Human Reproduction Act]''
* ''[http://canlii.ca/t/84fk Vital Statistics Act]''

===Links===

* [http://www.genetrackcanada.com Genetrack Biolabs]
* [http://www.pro-adn.com Orchid PRO-DNA]
* [http://www.thednalab.com Maxxam Analytics]

{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], August 9, 2016}}

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