Governing Legislation and Resources for Family Law (3:II): Difference between revisions
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This is the federal legislation that provides for both divorce law and the determination of corollary relief (support, custody, and access). Support orders under the Act have effect throughout Canada. All actions under the ''Divorce Act'' are generally heard in BC Supreme Court except those applications pursuant to Rule 18-3 of the ''Supreme Court Family Rules'', which allows such actions to be heard in certain Provincial Courts. However, if the Attorney General has designated a Provincial Court registry as a Supreme Court Registry under s 4 of the ''Provincial Court Act'', then that Provincial Court may decide interlocutory applications made under the ''Divorce Act''. | This is the federal legislation that provides for both divorce law and the determination of corollary relief (support, custody, and access). Support orders under the Act have effect throughout Canada. All actions under the ''Divorce Act'' are generally heard in BC Supreme Court except those applications pursuant to Rule 18-3 of the ''Supreme Court Family Rules'', which allows such actions to be heard in certain Provincial Courts. However, if the Attorney General has designated a Provincial Court registry as a Supreme Court Registry under s 4 of the ''Provincial Court Act'', then that Provincial Court may decide interlocutory applications made under the ''Divorce Act''. | ||
:'''Note:''' The ''DA'' does not provide for division of matrimonial assets. A person has to seek division of matrimonial assets under the ''Family Law Act'' ''[FLA]''. | |||
=== 2. Child, Family and Community Service Act, RSBC 1996, c 46 [CFCSA] === | === 2. Child, Family and Community Service Act, RSBC 1996, c 46 [CFCSA] === | ||
Revision as of 03:15, 28 October 2016
A. Note on the Family Law Act and this Manual
On March 18, 2013, British Columbia’s Family Law Act [FLA] came into force. The FLA is the culmination of many years of research and policy development, and has transformed British Columbia family law dramatically .
The current Manual chapter deals primarily with the FLA rather than the previous Family Relations Act [FRA]. If you are starting a legal challenge in family law now or in the future, the FLA will apply to your case. However, if you made a claim for property division before the FLA came into force (March 18, 2013), then those claims will be decided under the FRA; all of your other claims (such as for parenting arrangements, child support, spousal support) will be dealt with under the FLA, or the Divorce Act (DA), if it applies.
If your case still involves the FRA, we encourage you to look at an older version of this Manual, as we will not deal with the FRA in this version.
B. Resources in Print
- Continuing Legal Education Society of British Columbia, Family Law Sourcebook for British Columbia (Vancouver: Continuing Legal Education Society of British Columbia, 2015).
- This loose-leaf sourcebook contains a thorough overview of all aspects of family law, with cites to the relevant authorities for each statement of law.
- Continuing Legal Education Society of British Columbia, Annotated Family Practice 2011 - 2012 [regular updates]. (Vancouver: Continuing Legal Education Society of British Columbia, 2008).
- This is an essential resource for many family law lawyers, and is updated each year.
- Continuing Legal Education Society of British Columbia, British Columbia Family Practice Manual, 5th ed. [regular updates] (Vancouver: Continuing Legal Education Society of British Columbia, 2011).
- Loose leaf manual providing a solid how-to approach to common family law problems and processes.
- Continuing Legal Education Society of British Columbia, Desk Order Divorce—An Annotated Guide (Vancouver: Continuing Legal Education Society of British Columbia, 2013).
- Annotated guide to divorce, with regular updates.
- John D. Gardner and A.K. Korde, British Columbia Family Law: Annotated Legislation (Markham: Lexis Nexis Butterworths, 1984-2008).
- This loose leaf guide contains annotated legislation and judicial consideration of statutes pertaining to family law. Remember, it will only contain amendments up to the date of publication.
- The Honourable Madam Justice Carol Huddart and Trudi L Brown, QC, British Columbia Family Law Practice, 2015 Edition + E-Book (Markham: Lexis Nexis Butterworths, 1984-2008).
- This loose leaf guide contains annotated legislation and judicial consideration of statutes pertaining to family law. Remember, it will only contain amendments up to the date of publication.
Library References:
- Mary Jane Mossman, Families and the Law in Canada: Cases and Commentary (Toronto: Emond Montgomery Publications, 2004).
- A good casebook, which provides an overview of new family law issues in Canada.
- Julien D. Payne, Payne on Divorce (Scarborough: Carswell, 1996).
- A very good Canadian text on family law.
C. Resources on the Internet
1. Ministry of Justice – Family Law Legislation
Website: http://www.ag.gov.bc.ca/legislation/family-law
Resources that are particularly relevant include:
- Table of Concordance – allows for quick cross-referencing from the FRA sections to the FLA sections.
- Family Law Act Explained – an excellent primer on the major changes behind the FLA, breaking down the purpose of each new section individually.
- Questions and Answers – perhaps the best and most concise introduction to the changes that can be found on this website.
2. BC Supreme Court Services
Website: http://www.supremecourtselfhelp.bc.ca
- This service provides information to help users prepare the procedural aspects of a family or civil case. There is an office at 290 – 800 Hornby Street in Vancouver, but it does not handle phone, e-mail, or written inquiries. The staff cannot provide substantive advice on legal issues.
3. J.P. Boyd’s BC Family Law Web Resource
Website: http://wiki.clicklaw.bc.ca/index.php/JP_Boyd_on_Family_Law.
- This is an excellent site for those unfamiliar with family law rights and procedures, written in plain English. It is a good place to begin for those who have not had the benefit of a family law course.
- The Family Law Resource is one of the leading resources in BC, particularly for the Family Law Act.
- There is a link to forms for both matters in the Provincial Court and Supreme Court.
4. BC Family Maintenance Enforcement Program (FMEP)
Website: http://www.fmep.gov.bc.ca
- Administered by the Ministry of Human Resources, this program helps families to enforce child support and spousal support orders from ex-partners. The program is administered through select BC Employment and Assistance centres.
5. Legal Services Society Family Law in British Columbia
Website: http://www.familylaw.lss.bc.ca
- This site has general information on family law, including self-help materials, forms a client needs to file for an uncontested divorce, and step-by-step instructions for filling out the forms. It also houses web versions of Legal Services Society family law publications. Living Together, Living Apart: Common-Law Relationships, Marriage, Separation and Divorce is very useful. This publication is available in English, French, Simplified and Traditional Chinese, Punjabi, and Spanish.
6. British Columbia Vital Statistics Agency
Website: http://www2.gov.bc.ca/gov/content/life-events
- The Vital Statistics Agency is a service provided by the provincial Ministry of Health Services. The web site includes information on birth and death registration and certificates. It also includes wills notice registration and searches, information on how to change your name, and information on marriage licences. Contact numbers are available for various services including adoption records information. Marriage certificates can also be ordered online.
7. Ministry of Attorney General
Website: http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice
- This site provides general information about a number of issues of interest to BC couples who have separated or who are about to separate. It may also be useful for guardians and other family members, such as grandparents, who may be involved in making important decisions about the family and its future.
8. Department of Justice Canada
About Spousal Support/Spousal Support Advisory Guidelines: http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html
About Child Support/Federal Child Support Guidelines, P.C. 1997-469: http://www.justice.gc.ca/eng/rp-pr/fl-lf/child-enfant/guide/sbs-eng.pdf
9. Support Calculator
Website: http://www.mysupportcalculator.ca/
- People can use this website to calculate how much child support and spousal support they have to pay under the guidelines.
10. British Columbia Supreme Court
Website: http://www.courts.gov.bc.ca/supreme_court
- Procedural guidelines for divorce proceedings can be found on this website.
11. Divorce Registry of Canada
Website: http://www.justice.gc.ca/eng/fl-df/divorce/crdp-bead.html
Telephone: (613) 957-4519
- The registry is relevant as you need to fill in and print out a form and file it with the Court when you are seeking a divorce. This is required so that the Divorce Registry can confirm that you have not already been divorced.
12. MOSAIC
Website: http://www.mosaicbc.com
Telephone: (604) 254-0244
- Deals with issues that affect immigrants and refugees while settling into Canadian society. They also offer translation services.
13. Interjurisdictional Support Orders
Web site: http://www.isoforms.bc.ca
- Interjurisdictional Support Orders (ISOs) can be obtained from other Canadian provinces and territories and from reciprocating foreign countries by following the procedure set out in the Interjurisdictional Support Orders Act, SBC 2002, Chapter 29.
14. Children and Travel
Website: http://travel.gc.ca/travelling/publications/travelling-with-children
15. Ministry of Justice Dispute Resolution Office
Website: http://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/dispute-resolution-office
Telephone: (250) 387-1480
- Develops and implements dispute resolution services and justice transformation projects with administrative tribunals, courts, government ministries and agencies and external organizations.
16. Collaborative Divorce
Website: http://www.collaborativepractice.com
Website: http://www.collaborativedivorcebc.org (Vancouver)
Website: http://www.nocourt.net (Lower Mainland)
Website: http://www.bccollaborativerostersociety.com
- These sites provide information about Collaborative Divorce, an option for parties wishing to resolve disputes respectfully and without going to Court. Parties work out a negotiated settlement with the help of collaboratively trained professionals including (as needed) lawyers, divorce coaches, child specialists and financial specialists.
17. Clicklaw
Website: http://www.clicklaw.bc.ca
- Described as a “portal-project”, Clicklaw is a website aimed at enhancing access to justice in British Columbia by helping users to sort through the myriad of legal information and assistance that is available and find the most appropriate resources for a given situation. *Visitors are directed to user-friendly resources designed for the public by contributor organizations (including the Community Legal Assistance Society and LSLAP).
18. The Law Society of British Columbia - Family Law Mediators
Website: http://www.lawsociety.bc.ca/page.cfm?cid=1476&t=Family-Law-Mediators
- The Law Society offers accreditation for those who wish to become family law mediators. Those who become accredited are able to help people reach a consensual settlement regarding issues relating to their marriage, cohabitation, separation or divorce. The website provides a list of lawyers who have been accredited, and what area of BC they practice in.
19. BC Hear the Child Society
Website: http://www.hearthechild.ca
- This society provides a provincial roster of qualified child interviewers who work in the legal and mental health fields.
D. Resources by Telephone
1. Family Justice Centres
Family Justice Centres assist families going through a separation with issues of child custody and access, and spousal support as well as child support issues. Family justice counsellors provide dispute resolution services, and make referrals to legal aid, other legal services, and community resources for families facing separation.
| Location | Telephone | Fax |
|---|---|---|
| Vancouver – Commercial Drive | (604) 660-6828 | (604) 775-0679 |
| Vancouver – Robson Square | (604) 660-2084 | (604) 660-4177 |
| Victoria | (250) 356-7012 | (250) 356-6093 |
| Nanaimo | (250) 741-5447 | n/a |
| Abbotsford | (604) 851-7055 | (604) 851-7056 |
| Chilliwack | (1-888) 288-8249 | (604) 795-8258 |
| Langley | (604) 501-3100 | (604) 532-3626 |
| Surrey | (604) 501-3100 | (604) 501-3112 |
| Maple Ridge | (604) 927-2217 | (604) 466-7343 |
| Port Coquitlam | (604) 927-2217 | (604) 927-2220 |
| New Westminster | (604) 660-8636 | (604) 660-2414 |
| North Vancouver | (604) 981-0084 | (604) 981-0035 |
| Richmond | (604) 660-3511 | (604) 660-3640 |
2. Provincial Court Vancouver Registry
Family Court Registry: (604) 660-8989
3. Provincial Court Vancouver Family Duty Counsel Service
Telephone: (604) 660-1508
- Duty counsel is also available in other cities, contact Legal Services Society for a current list
- Legal Services Society telephone: (604) 601-6000
4. Supreme Court Vancouver Registry
Administration: (604) 660-2847
Family Law Registry: (604) 660-2486
Courthouse Library: (604) 660-2841
5. Supreme Court New Westminster Registry
Civil Registry: (604) 660-8522
Criminal Registry: (604) 660-8521
Divorce: (604) 775-0671
Courthouse Library: (604) 660-8577
Family Law Duty Counsel: (604) 775-0628
E. Relevant Legislation
1. Divorce Act, RSC 1985, c 3 [DA]
This is the federal legislation that provides for both divorce law and the determination of corollary relief (support, custody, and access). Support orders under the Act have effect throughout Canada. All actions under the Divorce Act are generally heard in BC Supreme Court except those applications pursuant to Rule 18-3 of the Supreme Court Family Rules, which allows such actions to be heard in certain Provincial Courts. However, if the Attorney General has designated a Provincial Court registry as a Supreme Court Registry under s 4 of the Provincial Court Act, then that Provincial Court may decide interlocutory applications made under the Divorce Act.
- Note: The DA does not provide for division of matrimonial assets. A person has to seek division of matrimonial assets under the Family Law Act [FLA].
2. Child, Family and Community Service Act, RSBC 1996, c 46 [CFCSA]
This Act provides for official apprehension of children (under 19 in BC) who are believed to be in need of protection or care. A hearing must be held before a judge within seven days. The hearing does not lead to any temporary or permanent custody orders, except by consent. Separate hearings are held for temporarily custodial orders and continuing custodial orders.
The enforcement of child support and spousal support orders is administered by the Family Maintenance Enforcement Program.
3. Family Relations Act, RSBC 1996, c 128 [FRA]
The FRA has been replaced by the FLA and is no longer in force except for actions that commenced before the FLA was in effect, and only in respect of property and pension division.
4. Family Law Act, SBC 2011, c 25 [FLA]
The FLA came into force on March 18, 2013, and replaced the Family Relations Act. The FLA places the safety and best interests of the child first when families are going through separation and divorce. It also clarifies parental responsibilities and the division of assets if relationships breakdown, addresses family violence and encourages families to resolve their disputes out of Court.
Some of the main changes in the FLA include:
- Shifting focus to the safety and best interests of the child
- Moving from custody to guardianship and parenting arrangements
- Clarifying the law on family violence and its impact on family Court decisions
- Defining the responsibilities of guardians
- Expanding the toolbox to enforce family Court orders
Since March 18, 2013, the FRA no longer applies except only in dealing with the division of assets for proceedings which were filed before the FLA came into force. This includes cases that were commenced while the FRA was the relevant statute. Essentially, this means that child-related issues are determined by the FLA, while property division issues that commenced under the FRA will continue to be governed by the FRA unless the parties agree to transition their legal matter to be governed under the FLA. Sections 250-255 of the FLA allow parties to transition legal matters concerning care of and time with children, property division, pension benefits, and restraining orders from the FRA to the FLA. Property division for cases that were started after March 18, 2013 will be governed by the FLA, including actions commenced by common law spouses before the FLA came into force, if the pleadings are amended to include division of property and debt under the FLA.
5. Family Homes on Reserves and Matrimonial Interests or Rights Act, (SC 2013, c 20) [FHRMIRA]
Website: http://canlii.ca/t/52mbr
FHRMIRA came into force in 2013 and governs family law cases involving property located on Indian Reserves. FHRMIRA also incorporates the local laws of the First Nation where the Reserve is located.
Matters regarding the division of matrimonial interests or rights in property on Reserve may become complicated as some orders require consultation with the Band Council and with other Band Members, other than the spouses, who have an interest or right in the home. It is important to consult FHRMIRA as well as the Band’s legislation and investigate all of the potential interests in the matrimonial home when dealing with these matters.
6. British Columbia Supreme Court Family Rules, BC Reg. 169/2009
Website: http://canlii.ca/t/8mcr
These are the procedural rules that govern family law cases brought in the Supreme Court. Refer to these rules for the specific procedural requirements when making family law applications.
7. British Columbia Provincial (Family) Court Rules, BC Reg. 417/98
Websites: http://canlii.ca/t/85pb
These are the procedural rules that govern family law cases brought in the Provincial Court.
F. Referrals
1. The Non-Legal Problem
Many clients will have problems that are not strictly legal. If the client has a personal problem, refer the client to an appropriate social service agency in the lower mainland. The Red Book is a very useful resource for this purpose. Often, even when a client does have a legal problem, the legal remedy will not resolve all issues for that person. Be aware of this and try to get clients the help they need.
2. The Legal Problem
Care should be taken in making referrals. Someone has referred this person to you and the client does not want to be shoved further down the line. Do not refer unless you are sure that the agency handles such problems.
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