Difference between revisions of "The Legislation on Family Law"

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One of the most important distinctions between these two laws, as will be seen below, lies in how they define key words like ''spouse'' and ''child''. Depending on the particular law you're dealing with, you may fall inside these definitions or outside of them.
One of the most important distinctions between these two laws, as will be seen below, lies in how they define key words like ''spouse'' and ''child''. Depending on the particular law you're dealing with, you may fall inside these definitions or outside of them.


===The ''Divorce Act''===
{{:Divorce Act}}
 
The ''Divorce Act'' is a federal law that you can find, along with other federal laws, at the website of the federal Department of Justice. Because of a constitutional rule called the ''doctrine of paramountcy'', the ''Divorce Act'' is considered to be superior to the provincial ''Family Law Act''. As a result, if you are entitled to ask for an order under the ''Divorce Act'' about child support or spousal support, you probably should.
 
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 licenced to perform marriages. If you are not legally married, the ''Family Law Act'' is the only game in town. Although the court may allow someone who isn't a spouse  to apply under the ''Divorce Act'' for an order relating to custody of or access to a child, that person must get the court's permission first, and the spouses must have already started a court proceeding between each other.
 
You must also be ''ordinarily resident'' in your province for at least one year before you can ask for an order under the ''Divorce Act''. This means that you might have to delay filing for a divorce if you've moved to a new province within the last year.
 
The ''Divorce Act'' refers to children as ''children of the marriage''. A child of the marriage is defined in s. 2(1) as:
 
<blockquote><tt>A child of two spouses or former spouses who, at the material time,</tt></blockquote>
<blockquote><blockquote><tt>(a) is under the age of majority and who has not withdrawn from their charge, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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.</tt></blockquote></blockquote>
 
In other words, a child of the marriage is someone who is less than 19 years old, the age of majority in BC, or who is 19 and older if the child cannot support him- or herself. Since only people qualifying as ''spouses'' are obliged to pay child support, the definition of child of the marriage is expanded in s. 2(2) in include stepparents:
 
<blockquote><tt>For the purposes of the definition “child of the marriage” in subsection (1), a child of two spouses or former spouses includes</tt></blockquote>
<blockquote><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent</tt></blockquote></blockquote>
 
The ''Divorce Act'' covers these basic subjects:
 
#divorce;
#custody of and access to children;
#child support; and,
#spousal support.
 
{{:Family Law Act}}


===The Child Support Guidelines===
===The Child Support Guidelines===
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