The Legislation on Family Law
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The most important pieces of legislation about family law in British Columbia are the provincial Family Law Act and the federal Divorce Act. There is also a very important federal regulation, known as the Child Support Guidelines, and an important academic paper, called the The Spousal Support Advisory Guidelines. You may also run into other provincial and federal laws, like the Name Act, the Partition of Property Act, or the Canada Pension Plan, which weren't written just for family law disputes but may still relate to your situation. There are also some international treaties that might apply, most commonly the Hague Convention on Child Abduction and the UN Convention on the Rights of the Child.
This section describes the primary legislation on family law, and briefly reviews some of the more important secondary legislation and international 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 are the same, there are significant differences between the two laws that you need to be aware of.
Only the Divorce Act deals with divorce, and the Divorce Act only applies to married spouses. Only the Family Law Act deals with the guardianship of children of property and debts, but the Family Law Act applies to everyone, regardless of the nature of their family relationship. Both statutes deal with parenting children, children's parenting schedules, child support, and spousal support. One of the most important distinctions between the two laws, as we'll talk about later, is how they define important terms like spouse, parent, and child. Depending on the particular law you're dealing with, you may fall ins or outside of them, and that can have an important impact on your family law problem and the options available to you.
Both the Divorce Act and the Family Law Act rely on the Child Support Guidelines to calculate child support and the payment of children's special or extraordinary expenses. The Guidelines are a regulation to the Divorce Act and are adopted by the Family Law Act.
Spousal support is usually calculated using the The Spousal Support Advisory Guidelines, whether your case is under the Divorce Act or the Family Law Act. The Advisory Guidelines aren't a statute or a regulation. They are an academic paper that proposes different formulas for calculating the amount of spousal support that should be paid and the length of time it should be paid for. Even though the Advisory Guidelines are a paper, all of Canada's courts have accepted their formulas as a good way to calculate spousal support.
This section provides an introduction to the Divorce Act, the Family Law Act, the Child Support Guidelines and the Spousal Support Advisory Guidelines. The next two pages go into the Divorce Act and the Family Law Act in a lot more detail.
Before moving on, let's talk about how to read laws made by the government, called legislation, statutes, and acts. (All of these terms mean the same thing.) We'll use British Columbia's Family Law Act as an example.
The name of a statute is written in italics. The names of another kind of law, called regulations, are written without italics in legal documents. For example:
- The Family Law Act is a statute, so it appears in italics.
- The Federal Child Support Guidelines is a regulation, so it is not written in italics.
In British Columbia, we talk about the provincial Family Law Act and the Family Law Act Regulation, and the federal Divorce Act and the Child Support Guidelines. The Child Support Guidelines are a regulation to the Divorce Act, and the Family Law Act Regulation is, like the name suggests, a regulation to the Family Law Act.
The proper legal title of the Family Law Act is:
- Family Law Act, SBC 2011, c. 25
Here's what those letters and numbers mean:
- SBC stands for "Statutes of British Columbia."
- 2011 means that the statute was passed by the provincial legislature in 2011.
- c. stands for "chapter."
- 25 means that the Family Law Act was the twenty-fifth statute passed by the legislature in 2011, or the twenty-fifth chapter of the statutes passed by the legislature in 2011.
Every now and then the government reorganizes all the laws it has made into one set of books, sorting the laws alphabetically. The federal government did this since 1985, and the last time British Columbia did this was in 1996. When this happens, SBC is replaced by RSBC (this stands for the "Revised Statutes of British Columbia") and the law gets a new chapter number. The old Family Relations Act, the law the Family Law Act replaced, first became law in 1978. However, the statutes of British Columbia were consolidated in 1996, and when that happened, the title of the Family Relations Act changed from the Family Relations Act, SBC 1978, c. 20 to become the Family Relations Act, RSBC 1996, c. 128.
Other provinces and the federal government follow the same pattern. The title of Alberta's Family Law Act is the Family Law Act, SA 2003, c. F-4.5 (Statutes of Alberta, 2003, chapter F-4.5), and the title of the Divorce Act is the Divorce Act, RSC 1985, c. 3 (2nd Supp.) (Revised Statutes of Canada of 1985, chapter 3, second supplement).
The individual rules in a statute are broken down into numbered paragraphs, called sections. This helps people identify the specific rule they are talking about. This is section 23 of the Family Law Act:
23 (1) For all purposes of the law of British Columbia,
(a) a person is the child of his or her parents,
(b) a child's parent is the person determined under this Part to be the child's parent, and
(c) the relationship of parent and child and kindred relationships flowing from that relationship must be as determined under this Part.
(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.
You'll see that this rule is broken down into smaller bits. These are called subsections. If someone was talking about the last part of section 23, they would say "section 23, subsection 2" or "section 23 sub 2." In writing, you would put "section 23(2)." (Just as chapter is abbreviated as c., section is abbreviated as s. If we are talking about more than one section, sections is abbreviated as ss. Subsection is abbreviated as s-s. and the plural is written as s-ss.)
Long statutes like the Family Law Act sometimes have their subject matter broken into big chunks called parts. In the Family Law Act, Part 3 is titled "Parentage" and has all of the rules about deciding who the parents of a child are. Part 4 is titled "Care of and Time with Children" and has all the rules about parenting children. Long parts are sometimes broken into smaller chunks called divisions. Part 4 of the Family Law Act includes Division 2: Parenting Arrangements, and Division 3: Guardianship. Part 4, Division 2 has all of the rules about parental responsibilities, parenting time and contact, while Part 4, Division 3 has all the rules about appointing and removing people as the guardians of a child.
In this resource, we don't worry about using the full legal titles of legislation, and we mostly talk about sections rather than parts and divisions.
The Divorce Act
The Divorce Act is a federal law that you can find, along with other federal laws, on the website of the federal Department of Justice or on CanLII, a free website for searching Canadian court decisions and legislation. The Divorce Act became law in 1985. A number of very important changes to the act became law on 1 March 2021 and changed how we talk about parenting children and the best interests of children. The current Divorce Act covers these main subjects:
- getting divorced,
- decision-making responsibility,
- parenting time and contact with children,
- moving away, with or without children
- child support, and
- spousal support.
The Divorce Act only applies to married spouses, people who are, or were, married to each other by a marriage commissioner or a religious official licensed to perform marriages. (If you're not legally married, the Divorce Act doesn't apply to you, and the Family Law Act is the only game in town.) The Divorce Act refers to children as children of the marriage. A "child of the marriage" is defined in section 2(1) as:
A child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
In other words, a "child of the marriage" is someone who is less than 19 years old — the age of majority in British Columbia — or who is 19 or older if the child cannot support themselves for some reason, like going to college or university. The definition of "child of the marriage" is expanded in section 2(2) of the Divorce Act to include stepparents.
Not only do you have to be married to ask for an order under the Divorce Act, you also have to be habitually resident in your province for at least one year before you can ask the court of your province for the order. If you've lived in your province for less than 12 months, and your spouse has been habitually resident in their province for at least a year, you can ask the court there for an order under the Divorce Act.
Married spouses can ask the court for:
- an order for their divorce,
- an order about decision-making responsibilities for any children of the marriage,
- an order about parenting time,
- an order that they pay or receive child support, and
- an order that they pay or receive spousal support.
If there is a court proceeding between married spouses, someone who is not a spouse — like a grandparent, an aunt or uncle, or another person with a special connection to a child of the marriage — can ask for an order that they have contact with the child. However, people who are not spouses must get permission from the court before they can ask for a contact order.
The Family Law Act
The Family Law Act is a British Columbia law that you can find, along with other provincial laws, at the official government website of the Queen's Printer or on CanLII, a free website that lets you search Canadian laws and court decisions. The Family Law Act covers these basic subjects:
- determining who the parents of a child are,
- guardianship of children,
- parental responsibilities,
- parenting time and contact with children,
- moving away, with or without children,
- child support,
- managing children's property,
- spousal support,
- dividing property and debt,
- orders protecting people, and
- orders protecting property.
The Family Law Act applies to:
- married spouses, people who are, or were, married to each other by a marriage commissioner or a religious official licensed to perform marriages,
- unmarried spouses, people who live, or used to live, together in a romantic relationship,
- people who are the parents of a child together, and
- people who are the guardians of a child.
Unlike the Divorce Act, there are no rules requiring you to live in British Columbia for a certain amount of time before you can ask the court for an order under the Family Law Act.
Section 3 of the act says who is a "spouse:"
(1) A person is a spouse for the purposes of this Act if the person
(a) is married to another person, or
(b) has lived with another person in a marriage-like relationship, and
(i) has done so for a continuous period of at least 2 years, or
(ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.
(2) A spouse includes a former spouse.
Part 3 of the act has the rules for deciding who is a "parent." Most of the time, the parents of a child are the child's birth mother and biological father. (Section 26(2) lists the circumstances in which a man is assumed to be the biological father of a child, such as being married to the birth mother, and section 33 says when the court can order that a DNA test be conducted to determine whether a man is the biological father of a child.) When a child is conceived through assisted reproduction, a child's birth parents — depending on the arrangements people make — can include a donor of sperm, a donor of eggs, a surrogate mother and the spouse of a surrogate mother.
Section 1 of the act defines a child as "a person who is under 19 years of age." Section 146 expands that definition for the part of the act about child support, and says that "'child' includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians." ("Other reason" usually means that the adult child is going to college or university.)
The same section expands the definition of parent for the purposes of child support. Under this definition, "parent" can include someone who is a stepparent. A "stepparent" is "a person who is a spouse of the child's parent and lived with the child's parent and the child during the child's life."
Section 39 says who is assumed to be the guardian of a child:
(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian.
(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies:
(a) section 30 [parentage if other arrangement] applies and the person is a parent under that section;
(b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian;
(c) the parent regularly cares for the child.
It's important to notice that while the parents of a child are usually each a guardian of a child, this is not always the case. However, the court can make an order under section 51 of the Family Law Act to appoint a person, including a parent, as a guardian of a child.
Someone who is a guardian — whether or not they are a parent, a married spouse or an unmarried spouse — can ask the court for:
- an order about parental responsibilities for any children, and
- an order about parenting time and contact with a child.
Someone who is a parent or a guardian of a child — whether or not they are a married spouse or an unmarried spouse — can ask the court for an order that they pay or receive child support.
Someone who is a married spouse or an unmarried spouse can ask the court for:
- an order that they pay or receive spousal support, and
- an order for the division of property and debt, as long as a person who is an unmarried spouse has lived with their partner for at least two years.
Anyone can ask the court for:
- a declaration about who the parents of a child are,
- an order that they have contact with a child,
- an order appointing them as the guardian of a child, and
- an order about the management of a child's property.
The Child Support Guidelines
The Child Support Guidelines, often referred to as just "the Guidelines," are 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 anyone who is required to pay or entitled to receive child support, whether or not they are a married spouse, an unmarried spouse, a parent or a guardian.
The Child Support Guidelines apply to child support orders made under both the federal Divorce Act and the provincial Family Law Act. Because they are mandatory whenever child support is paid, the Guidelines also apply to agreements about child support.
The Child Support Guidelines include a series of tables, one for each province and territory, that specify how much child support should be paid according to:
- the income of the payor, the person paying child support,
- the number of children support is being paid for, and
- the province or territory in which the payor lives.
The Guidelines also talk about special circumstances in which the parties may agree, or the court may order, that child support be paid in an amount that is different from the amount specified in the tables:
- when the child is 19 — the age of majority in British Columbia — or older,
- the payor's income is more than $150,000 per year,
- the payor is a stepparent,
- the payor and the recipient, the person receiving child support, each have the primary home of one or more children,
- the payor and the recipient share the children's time equally or almost equally, and
- the payment of the table amount would cause "undue hardship" to either the payor or the recipient.
The Child Support Guidelines also talk about how the payor and recipient share the cost of the children's special or extraordinary expenses. ("Special expenses" include things like day care costs, medical insurance premiums, health care costs and the cost of college or university. "Extraordinary expenses" include primary and secondary school expenses and the cost of extracurricular activities, like sports teams or music lessons.) Most of the time, the payor and recipient share qualifying expenses according to their incomes.
The Child Support 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," are not a law. They are 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 for, once a spouse's entitlement to receive spousal support has been proven. Although the Advisory Guidelines are not a law, the courts of British Columbia and the rest of Canada 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 Spousal Support Advisory Guidelines apply to anyone who is required to pay or entitled to receive spousal support, whether or not they are a married spouse or an unmarried spouse.
The Spousal Support Advisory Guidelines will be considered when the court is making spousal support orders under both the federal Divorce Act and the provincial Family Law Act. Even though the Advisory Guidelines are not a law and there is no rule saying that they must be used in agreements about spousal support, the Advisory Guidelines are often used to make agreements.
The Spousal Support Advisory Guidelines have two basic formulas that are used to calculate the amount of spousal support and the length of time it should be paid for: one when the spouses have children and one for when they do not. The formulas take into account a bunch of information, including:
- the income of the payor, the person paying spousal support, and the income of the recipient, the person receiving spousal support,
- the length of the spouses' relationship,
- the age of each spouse,
- how much child support is being paid,
- how much is being spent on the children's special or extraordinary expenses, and
- the age of each child and where they are in school.
The Advisory Guidelines also talk about special circumstances in which the parties may agree, or the court may order, that spousal support be paid differently than in the amount the results of the formulas specify, including:
- when the family has a lot of debts to pay,
- when a spouse has support obligations from a previous relationship,
- when a spouse is caring for children from a previous relationship,
- when a spouse is ill or disabled, and
- when a child has expensive special needs.
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.
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.
The federal Marriage (Prohibited Degrees) Act sets out the degrees of consanguinity — relatedness by blood or adoption — a couple cannot have if they are going to marry each other. The federal Civil Marriage Act defines marriage as the "union of two persons" rather than "the union of a man and a woman," allowing same-sex couples to marry, just as opposite-sex couples do, and makes related changes to other federal legislation, like the Divorce Act, allowing same-sex couples to divorce, just as opposite-sex couples do.
The provincial Marriage Act deals with the formalities of marriage, and covers such things as who is entitled to marry people, issuing marriage licences, and the age at which a couple can legally marry.
The provincial Age of Majority Act sets the age of majority at 19. The provincial Infants Act describes the legal capacity of children, such as their ability to enter into legally binding contracts or marriage settlements.
The provincial 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 Adopting Children in the chapter Family Relationships.
The provincial Parental Liability Act says that parents whose children have been convicted of causing damage to or loss of property may be held responsible for loss caused by their children's offences, up to a maximum of $10,000.
On 1 October 2002, the Children's Commissioner, who investigated serious injuries or deaths suffered by children, and the Office of the Child, Youth and Family Advocate, which investigated issues involving children in the care of or involved with governmental and private agencies, were replaced by the Office for Children and Youth. On 18 May 2006, this was in turn replaced by the Representative for Children and Youth, operating under the Representative for Children and Youth Act. The goals of the representative, who has significant oversight powers, are to:
- foster respect for the fundamental rights of all children and 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 child-related s and programs in British Columbia,
- work collaboratively with public bodies, including the Chief Coroner and the Public Guardian and Trustee, to build an integrated, responsive process for the review and investigation of critical injuries and death, and
- draw on lessons learned to support and promote prevention initiatives and best practices with respect to intervention.
The provincial Child, Family and Community Service Act gives the government, specifically the Ministry for Children and Family Development, the power to intervene when children are believed to be suffering from abuse or neglect or are at risk of suffering from abuse or neglect. The act regulates the conditions under which child protection workers may intervene, when children can be seized, the conditions in which children may be placed in the care of the government, and specifies the authority and powers of child protection workers.
Enforcement of support obligations
The provincial Family Maintenance Enforcement Act establishes the Family Maintenance Enforcement Program, a government agency with the authority to enforce support orders, and sets the extent of that authority. The provincial Court Order Enforcement Act sets out the ways in which money awarded under a judgment can be collected, such as by liens against property, the garnishment of wages, and so forth.
The provincial Interjurisdictional Support Orders Act allows support orders made outside of British Columbia to be registered in this province for enforcement. It also allows someone affected by a registered order to start a process here that may result in the variation of that order by 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 an agreement with British Columbia about support orders.
The provincial Land (Spouse Protection) Act protects the rights of married spouses and unmarried spouses to their interest in their family home (called a "homestead" in the act) by allowing them to file an "entry" on the title of the property that can stop the property from being sold. A spouse seeking this protection must file an entry with the land title office while they are still in the relationship. The act stops applying when spouses separate.
The provincial 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 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 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 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 Vital Statistics Act talks about the registration of new births and about the naming of infants, and should be read if you're thinking of calling your child something different like Moon Unit or Blue Ivy.
Canada is a signatory to many 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 from a country and the human rights of children.
The Hague Convention on the abduction of children
The Hague Convention on the Civil Aspects of International Child Abduction says what steps a signatory country must take 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 applications like these, the different orders the court in the destination country can make, and the factors that court must consider in deciding whether to make 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 in the section Enforcing Orders in Family Matters.
The UN Convention on the Rights of the Child
The United Nations Convention on the Rights of the Child is an international treaty and law in Canada. The convention says that children have the basic human rights that adults do, as well as other rights such as the right to be protected from abuse and exploitation, the right to education and health care, and the right to an adequate standard of living. The convention also says, at article 12, that the views of children must be heard in any legal proceeding that affects their interests:
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
You can find more information about how the views of children are heard in family law disputes in the chapter Children and Parenting after Separation.
Canada and British Columbia have made a number of important agreements with other countries for the mutual enforcement of court orders.
The Interjurisdictional Support Orders Act talks about getting and changing orders for child support and spousal support where the parties are living in different provinces, territories, or countries. The Interjurisdictional Support Orders Regulation has a table showing which countries have signed up.
The Court Order Enforcement Act is about enforcing court orders for the payment of money or transfer of goods or property. The countries that have signed up can be found in the Notice of Reciprocating Jurisdictions.
You can find more information about the Interjurisdictional Support Orders Act in the chapter Child Support, in the section Making Changes to Child Support. You can find more information about enforcement of orders in the chapter Resolving Family Law Problems in Court, in the section Enforcing Orders in Family Matters.
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 16 February 2020.|
|JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|