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 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.
The most important legislation 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 describes the basic legislation on family and divorce law, and briefly reviews some of the important secondary legislation touching on family law issues.


'''DRAFT'''
'''DRAFT'''


==The Basic Legislation==
==The Primary Legislation==


The ''Divorce Act'', the ''Family Law Act'' and the Child Support Guidelines are central to family law. 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. The chapter The Legal System > The Law has a detailed discussion of the federal and provincial authority to make laws.
The ''Divorce Act'', the ''Family Law Act'' and the Child Support Guidelines are central to family law. 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. The chapter The Legal System > The Law has a detailed discussion of the federal and provincial authority to make laws.
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===The ''Family Law Act''===
===The ''Family Law Act''===


The ''Family Law Act'' is a law created by the government of British Columbia that you can find, along with other provincial laws, at the website of the Queen's Printer. Both married and unmarried couples may apply for orders under this act, as well as other people who might have an interest in a child, such as a family of the child.
The ''Family Law Act'' is a law created by the government of British Columbia that you can find, along with other provincial laws, at the website of the Queen's Printer. Both married and unmarried couples may apply for orders under this act, as well as other people who might have an interest in a child, such as a family member of the child.


Section 1(1) of the ''Family Law Act'' defines a ''child'' as "a person who is under the age of 19 years." For the purposes of child support, however, s. 87 defines a child as follows:
Section 1 of the ''Family Law Act'' defines a ''child'' as someone who is under 19 years of age. Section 146 gives a bigger definition for child support, and defines a child as including:


<blockquote><tt>"child" includes a person who is 19 years of age or older and, in relation to the parents of the person, is unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life</tt></blockquote>
<blockquote><tt>a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians</tt></blockquote>


The importance of this definition, which intentionally mirrors the federal ''Divorce Act'', is to extend child support to children who are over the age of 19 but cannot support themselves.
Under Part 3 of the act, a ''parent'' is presumed to be the biological father and the birth mother of a child. However, if assisted reproduction is used, parent can include:


A ''parent'' is defined by s. 1(1) of the ''Family Law Act'' as including:
#up to two people to intend to have the child;
#a donor of sperm and a donor of an egg; and,
#a surrogate mother.


X
When child support is an issue, parent can include a stepparent. Section 146 defines a ''stepparent'' as:


A ''spouse'' is defined as:
<blockquote><tt>a person who is a spouse of the child's parent and lived with the child's parent and the child during the child's life</tt></blockquote>


X
Under s. 3, ''spouse'' includes:


The significance of this definition is that unmarried couples who qualify as "spouses" have rights against each other with respect to spousal support, child support and the care and control of children, but cannot make a claim under Parts 5 and 6 of the Family Relations Act, the parts which deal with the division of property and pensions. Unmarried people who do not qualify as spouses can't make any claims each other except for orders dealing with and child support and the care and control of children.
#someone who is married to someone else;
#someone who has lives with someone else in a marriage-like relationship for at least two years;
#except for the parts of the act about dividing property and debt, someone who has lives with someone else in a marriage-like relationship for less than two years if they have had a child together; and,
#former spouses.


Qualifying as a "spouse" is what people mean when they talk about being "common-law."
Under s. 39(1) of the act, a child's ''guardians'' are usually the child's parents, as long as they have lived together during the child's life. Under s. 39(3), guardians include:


See the Unmarried Couples section for more information about the rights of unmarried and common-law couples under the Family Relations Act.
#people who are parents because of an assisted reproduction agreement; and,
#parents who never lived with child and other parent, as long as the parent "regularly cares" for the child.


The Family Relations Act covers these subjects:
Under the act, someone who is a ''parent'' or ''guardian'' can be required to pay child support. Someone who is a ''guardian'' has ''parental responsibilities'' in respect of the child and has ''parenting time'' with the child. Someone who is not a guardian, has ''contact'' with the child.


custody, guardianship and access;
A ''spouse'' can be entitled to get spousal support from another spouse. Only spouses who are married or who have lived in a marriage-like relationship for at least two years are entitled to share family property and are responsible for family debt.
child support;
 
spousal support;
The ''Family Law Act'' covers these subjects:
the division of family assets and the division of pensions;
 
restraining orders intended to protect people; and,
#parentage of children and assisted reproduction;
restraining orders intended to protect property.
#guardianship of children;
#parental responsibilities and parenting time;
#contact with a child;
#child support and spousal support;
#dividing property and debt;
#orders to protect people; and,
#orders to protect property.


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