View source for The Legislation on Family Law

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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 international treaties touching on family law issues.

<span style="color:#D2691E">'''Important changes'''</span> <br />
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section. 

==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 we'll talk about later, 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 and adoption, 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]] in the chapter [[Family Relationships]].

The provincial ''[http://canlii.ca/t/84kw Parental Responsibility 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.

===Child protection===

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 [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 child-related 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 <span class="noglossary">review</span> 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 specifies 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 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 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 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 with the land title office while the spouse is ''still in the relationship''. The act ceases to apply when the spouses have separated. 

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 [[Further Topics and Overlapping Legal Issues in Family Law]] 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 United Nations [https://www.unhcr.org/uk/4aa76b319.pdf Convention on the Rights of the Child] is an international treaty, and law in Canada. This 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:

<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 countries. 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]], March 6, 2021}}

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