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Difference between revisions of "The Legislation on Family Law"

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{{JP Boyd on Family Law TOC}}
{{JP Boyd on Family Law TOC}}


The most important law in family and divorce law are the provincial ''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 laws, like the ''Name Act'' or the ''Partition of Property Act'', which weren't written just for family law disputes but still relate to your situation.
The most important laws in family and divorce law are the provincial ''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 laws, like the ''Name Act'' or the ''Partition of Property Act'', which weren't written just for family law disputes but still relate to your situation.


This page will describe the basic legislation on family and divorce law, and briefly review some of the important secondary legislation touching on family law issues.
This page will describe the basic legislation on family and divorce law, and briefly review some of the important secondary legislation touching on family law issues.
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restraining orders intended to protect people; and,
restraining orders intended to protect people; and,
restraining orders intended to protect property.
restraining orders intended to protect property.
C. The Child Support Guidelines
The Child Support Guidelines is a federal regulation which standardizes and regulates child support orders throughout Canada. The Guidelines talk about how income is calculated and special expenses are shared between parents, and set out a series of tables, one for each province, which set out how much child support should be paid based on the payor's income and the number of children.


The Child Support Guidelines apply to child support orders made under both the Divorce Act and the provincial Family Relations Act. Because they are mandatory whenever child support is being paid, the Child Support Guidelines also apply to agreements about child support.
===The Child Support Guidelines===
 
The Child Support Guidelines is a federal regulation which standardizes child support orders throughout Canada except Quebec. The Guidelines talk about how income is calculated and special expenses are shared between parents, and provide a series of tables, one for each province, which set out how much child support should be paid based on the payor's income and the number of children.
 
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 section Child Support.
The Guidelines, and the exceptions to the Guidelines tables, are discussed in a lot more detail in the section Child Support.


D. The Spousal Support Advisory Guidelines
===The Spousal Support Advisory Guidelines===
The Spousal Support Advisory Guidelines is not a law. It is an academic paper that describes 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.
 
The Spousal Support 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 and the Advisory Guidelines cannot be ignored if you have a problem involving the payment of spousal support.
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 and the Advisory Guidelines cannot be ignored if you have a problem involving the payment of spousal support.
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The Advisory Guidelines formulas, and the way the courts have dealt with the Advisory Guidelines, are discussed on more detail in the chapter Spousal Support > The Advisory Guidelines.
The Advisory Guidelines formulas, and the way the courts have dealt with the Advisory Guidelines, are discussed on more detail in the chapter Spousal Support > The Advisory Guidelines.


Back to the top of the page.
==Other Legislation==


II. Other Legislation
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.


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 ''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 ''Civil Marriage Act'' defines marriage as the "union of two person" 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 ''Income Tax Act''.
 
The provincial ''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.
 
===Children===


A. Marriage
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 federal 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 Civil Marriage Act defines marriage as the "union of two person" rather than "the union of a man and a woman," thus allowing same-sex couples to marry, and makes related changes to other federal legislation like the Divorce Act and the Income Tax Act.


The provincial 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.
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.


Marriage (Prohibited Degrees) Act
The provincial ''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 their children's offences, up to a maximum of $10,000.
Civil Marriage Act
Marriage Act
See the chapter Marriage & Divorce > Marriage for more information about marriage, void marriages and annulment.


B. Children
===Child Protection===
The provincial Age of Majority Act sets the age of majority at 19. The provincial Infants Act sets out the legal capacities of children, such as their ability to enter into a legally binding contract or marriage settlement.


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.
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 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:


The provincial 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 their children's offences, up to a maximum of $10,000.
#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.


Age of Majority Act
The provincial ''Child, Family and Community Service Act'' gives the government, specifically the 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.
Infants Act
Adoption Act
Parental Responsibility Act
See the section Children for more information about the law on children generally, and the chapter Other Family Law Issues > Adoption for information about the adoption process.


C. Child Protection
===Enforcement of Child Support and Spousal Support===
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 Representative for Children and Youth. 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;
The provincial ''Family Maintenance Enforcement Act'' establishes the Family Maintenance Enforcement Program, an 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.
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 Child, Family and Community Service Act gives the government, specifically the 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.


Child, Family and Community Service Act
The provincial ''Interjurisdictional Support Orders Act'' allows support orders made outside of British Columbia to be registered in this province for enforcement. It also lets 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 which have a reciprocal agreement with British Columbia.
Representative for Children and Youth Act
See the chapter Other Family Law Issues > Family Violence for additional information about child protection issues.


D. Enforcement of Child Support and Spousal Support
===Real Property===
The provincial Family Maintenance Enforcement Act establishes the Family Maintenance Enforcement Program, an 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 lets 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 which have a reciprocal agreement with British Columbia.
The provincial ''Land (Spouse Protection) Act'' protects the rights of marries spouses and unmarried 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 parties divorce.  


Family Maintenance Enforcement Act
The provincial ''Land Title Act'' deals with all aspects 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 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.
Court Order Enforcement Act
Interjurisdictional Support Orders Act
See the chapter Other Family Law Issues > Enforcing Orders & Agreements for more information about enforcing child and spousal support.


E. Real Property
===Wills and Estates===
The provincial Land (Spouse Protection) Act protects the rights of 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 parties divorce. The act does not apply to unmarried couples.


The provincial Land Title Act deals with all aspects 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 title. The Partition of Property Act gives someone who owns property jointly with somoene else the right to force the sale of that property over the objections of the other owner.
Marriage, divorce and living in an unmarried relationship for at least two years can affect how property is distributed through a will and how property is distributed when someone dies without a will, called dying intestate. Two pieces of provincial legislation are important here, the ''Wills Act'' and the ''Estate Administration Act''. The ''Wills Act'' says that:


Land (Spouse Protection) Act
<blockquote><tt>15 A will is revoked by the marriage of the testator, unless
Land Title Act
<blockquote><tt>(a) there is a declaration in the will that it is made in contemplation of the marriage, or
Partition of Property Act
<blockquote><tt>(b) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if the person died intestate.
See the chapter Family Assets > Protecting Assets for more information about protecting property.


F. Wills and Estates
<blockquote><tt>16 (1) In this section, "spouse" includes a person considered by a testator to be the testator's spouse.</tt></blockquote>
Marriage and divorce affect how property is distributed through a will and how property is distributed when someone dies without a will, called dying intestate. Two pieces of provincial legislation are important here, the Wills Act and the Estate Administration Act. The Wills Act provides that:
<blockquote><tt>(2) If in a will a testator</tt></blockquote>
<blockquote><blockquote><tt>(a) gives an interest in property to his or her spouse,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) appoints his or her spouse executor or trustee, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) confers a general or special power of appointment on his or her spouse,</tt></blockquote></blockquote>
<blockquote><tt>and after the making of the will and before the testator's death</tt></blockquote>
<blockquote><blockquote><tt>(d) a judicial separation has been ordered in respect of the marriage,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the marriage is terminated by a decree absolute of divorce, or a judgment granting a divorce under the Divorce Act (Canada) for which a certificate was or could have been issued under that Act, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the marriage is found to be void or declared a nullity by a court</tt></blockquote></blockquote>
<blockquote><tt>then, unless a contrary intention appears in the will, the gift, appointment or power is revoked and the will takes effect as if the spouse had predeceased the testator.</tt></blockquote>


15 A will is revoked by the marriage of the testator, unless
(a) there is a declaration in the will that it is made in contemplation of the marriage, or
(b) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if the person died intestate.
16 (1) In this section, "spouse" includes a person considered by a testator to be the testator's spouse.
(2) If in a will a testator
(a) gives an interest in property to his or her spouse,
(b) appoints his or her spouse executor or trustee, or
(c) confers a general or special power of appointment on his or her spouse,
and after the making of the will and before the testator's death
(d) a judicial separation has been ordered in respect of the marriage,
(e) the marriage is terminated by a decree absolute of divorce, or a judgment granting a divorce under the Divorce Act (Canada) for which a certificate was or could have been issued under that Act, or
(f) the marriage is found to be void or declared a nullity by a court
then, unless a contrary intention appears in the will, the gift, appointment or power is revoked and the will takes effect as if the spouse had predeceased the testator.
The Estate Administration Act deals with the distribution of the estate of someone who dies intestate, that is, without a will. This is a critical piece of legislation because a certain amount of the dead person's estate is automatically alloted to his or her spouse, regardless of whether they are together or have been separated for 2 years or 20 years. Section 85 provides that:
The Estate Administration Act deals with the distribution of the estate of someone who dies intestate, that is, without a will. This is a critical piece of legislation because a certain amount of the dead person's estate is automatically alloted to his or her spouse, regardless of whether they are together or have been separated for 2 years or 20 years. Section 85 provides that:


(2) This section applies if an intestate dies leaving a spouse and issue.
<blockquote><tt>(2) This section applies if an intestate dies leaving a spouse and issue.</tt></blockquote>
(3) If the net value of the person's estate is not greater than $65 000, the estate goes to the spouse.
<blockquote><tt>(3) If the net value of the person's estate is not greater than $65 000, the estate goes to the spouse.</tt></blockquote>
(4) If the net value of the person's estate is greater than $65 000, the spouse is entitled to $65 000, and has a charge on the estate for that sum.
<blockquote><tt>(4) If the net value of the person's estate is greater than $65 000, the spouse is entitled to $65 000, and has a charge on the estate for that sum.</tt></blockquote>
(5) After payment of the sum of $65 000, the residue of the estate goes as follows:
<blockquote><tt>(5) After payment of the sum of $65 000, the residue of the estate goes as follows:</tt></blockquote>
(a) if the intestate dies leaving a spouse and one child, 1/2 goes to the spouse;
<blockquote><blockquote><tt>(a) if the intestate dies leaving a spouse and one child, 1/2 goes to the spouse;</tt></blockquote></blockquote>
(b) if the intestate dies leaving a spouse and children, 1/3 goes to the spouse.
<blockquote><blockquote><tt>(b) if the intestate dies leaving a spouse and children, 1/3 goes to the spouse.</tt></blockquote></blockquote>
(6) If a child has died leaving issue and the issue is alive at the date of the intestate's death, the spouse takes the same share of the estate as if the child had been living at the date.
<blockquote><tt>(6) If a child has died leaving issue and the issue is alive at the date of the intestate's death, the spouse takes the same share of the estate as if the child had been living at the date.</tt></blockquote>
 
The provincial Wills Variation Act allows close relatives, including common-law spouses, who have been left out of someone's will to apply to court for an order giving them some of the dead person's estate.
The provincial Wills Variation Act allows close relatives, including common-law spouses, who have been left out of someone's will to apply to court for an order giving them some of the dead person's estate.


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