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Difference between revisions of "Introduction to Family Law in British Columbia"
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Introduction to Family Law in British Columbia (view source)
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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. | 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. | 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 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. | ||
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'''Further reading:''' | '''Further reading:''' | ||
Chapters on: | |||
*[[Introduction to the Legal System for Family Matters]] | * [[Introduction to the Legal System for Family Matters]] | ||
*[[Resolving Family Law Problems out of Court]] | * [[Resolving Family Law Problems out of Court]] | ||
*[[Children in Family Law Matters]], in particular the section on [[Parenting after Separation]] | * [[Children in Family Law Matters]], in particular the section on [[Parenting after Separation]] | ||
==Common family law problems== | ==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 <span class="noglossary">will</span> be cared for, whether support should be paid, and who <span class="noglossary">will</span> keep which property and which debt. | 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 <span class="noglossary">will</span> be cared for, whether support should be paid, and who <span class="noglossary">will</span> keep which property and which debt. | ||
Family law problems about children include making decisions about: | Family law problems about children include making decisions about: | ||
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'''Further reading:''' | '''Further reading:''' | ||
Chapters on: | |||
*[[Children in Family Law Matters]] | *[[Children in Family Law Matters]] | ||
*[[Child Support]] | *[[Child Support]] | ||
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'''Further reading:''' | '''Further reading:''' | ||
Chapters on: | |||
*[[Resolving Family Law Problems out of Court]] | *[[Resolving Family Law Problems out of Court]] | ||
*[[Resolving Family Law Problems in Court]] | *[[Resolving Family Law Problems in Court]] | ||
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'''Further reading:''' | '''Further reading:''' | ||
The chapter on: | |||
*[[Family Law Agreements|Family Law Agreements]] | *[[Family Law Agreements|Family Law Agreements]] | ||
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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. | 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 | 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]]'', | *guardianship of children under the ''[[Family Law Act]]'', | ||
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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. | 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: | 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, | *divorce, | ||
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*spousal support. | *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: | 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, | *guardianship of children, | ||
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'''Further reading:''' | '''Further reading:''' | ||
Chapters on: | |||
*[[Introduction to the Legal System for Family Matters]], in particular the section on [[The Law for Family Matters]] | *[[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 | *[[Legislation in Family Matters]] in Getting Started | ||
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===The care of children=== | ===The care of children=== | ||
There are three things that parents must decide when their relationship ends: where the children <span class="noglossary">will</span> mostly live; how the parents <span class="noglossary">will</span> make decisions about the important events in the children's lives; and, how much time each parent <span class="noglossary">will</span> have with the children. | There are three things that parents must decide when their relationship ends: | ||
#where the children <span class="noglossary">will</span> mostly live; | |||
#how the parents <span class="noglossary">will</span> make decisions about the important events in the children's lives; and, | |||
#how much time each parent <span class="noglossary">will</span> 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 | 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. | 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. | ||
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'''Further reading:''' | '''Further reading:''' | ||
Chapter on: | |||
*[[Children in Family Law Matters]], in particular the sections on [[Custody and Access]] and [[Guardianship, Parenting Arrangements and Contact]] | *[[Children in Family Law Matters]], in particular the sections on [[Custody and Access]] and [[Guardianship, Parenting Arrangements and Contact]] | ||
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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 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 | 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. | 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. | ||
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'''Further reading:''' | '''Further reading:''' | ||
Chapter on: | |||
*[[Child Support]], in particular the section on the [[Child Support Guidelines]] | *[[Child Support]], in particular the section on the [[Child Support Guidelines]] | ||
===Spousal support=== | ===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 | 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 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. | ||
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'''Further reading:''' | '''Further reading:''' | ||
Chapter on: | |||
*[[Spousal Support]], in particular the section on [[The Spousal Support Advisory Guidelines]] | *[[Spousal Support]], in particular the section on [[The Spousal Support Advisory Guidelines]] | ||
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*the interest of a spouse in a company, business or partnership, | *the interest of a spouse in a company, business or partnership, | ||
*debts owed to a spouse, and | *debts owed to a spouse, and | ||
*the increase in value of | *the increase in value of ''excluded property'' during the relationship. | ||
Each spouse is entitled to keep all of | 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, | *the property owned by each spouse on the date they began to live together or the date they married, whichever is earlier, | ||
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'''Further reading:''' | '''Further reading:''' | ||
Chapter on: | |||
*[[Property & Debt in Family Law Matters]] | *[[Property & Debt in Family Law Matters]] | ||
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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. | 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 | 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. | 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. | ||
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#the couple have separated and have stayed separated for more than one year, | #the couple have separated and have stayed separated for more than one year, | ||
#a spouse has had sex with someone other than | #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''. | #a spouse has been verbally, emotionally or physically abusive to the other spouse, which is what the ''[[Divorce Act]]'' means by ''cruelty''. | ||
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'''Further reading:''' | '''Further reading:''' | ||
Chapter on: | |||
*[[Separation & Divorce]] | *[[Separation & Divorce]] | ||
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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. | 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, | 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. | 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. | ||
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If an arranged marriage has been proposed, the parties must still agree to the marriage of their own free <span class="noglossary">will</span>. 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. | If an arranged marriage has been proposed, the parties must still agree to the marriage of their own free <span class="noglossary">will</span>. 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 <span class="noglossary">will</span> usually sign a | When one spouse sponsors another spouse to come to Canada, that person <span class="noglossary">will</span> 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 <span class="noglossary">will</span> have to leave the country. People who are permanent residents, for example, <span class="noglossary">will</span> 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. | Separation does not automatically mean that someone new to Canada <span class="noglossary">will</span> have to leave the country. People who are permanent residents, for example, <span class="noglossary">will</span> 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. | ||
