2,667
edits
Difference between revisions of "Introduction to Family Law in British Columbia"
From Clicklaw Wikibooks
Introduction to Family Law in British Columbia (view source)
Revision as of 19:57, 7 August 2017
, 19:57, 7 August 2017Mostly wording changes, some clarification
m (Mostly language updates, some clarification on technical issues) |
m (Mostly wording changes, some clarification) |
||
| Line 94: | Line 94: | ||
*orders protecting property. | *orders protecting property. | ||
The Supreme Court can also hear appeals of decisions made by the Provincial Court. The Court of Appeal only hears appeals of decisions made by the Supreme Court, including decisions made by the Supreme Court about appeals from the Provincial Court | The Supreme Court can also hear appeals of decisions made by the Provincial Court. The Court of Appeal only hears appeals of decisions made by the Supreme Court, including decisions made by the Supreme Court about appeals from the Provincial Court! | ||
This chart shows which trial court can deal with which family law problem: | This chart shows which trial court can deal with which family law problem: | ||
| Line 143: | Line 143: | ||
==The law== | ==The law== | ||
There are two kinds of law: laws made by the governments, called ''legislation'', ''statutes'' | There are two kinds of law: laws made by the governments, called ''legislation'', ''statutes'', ''acts'' and ''regulations''; and, laws made by the courts. Laws made by the courts are known as the ''common law'', ''precedent decisions'' or ''case law''. They come from the different proceedings that the courts have heard over hundreds of years, and the decisions the courts have made in those different proceedings. | ||
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. | ||
| Line 155: | Line 155: | ||
*spousal support. | *spousal support. | ||
The ''Family Law Act'' applies to married spouses, unmarried spouses, and unmarried couples who are neither married spouses nor unmarried spouses 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 law deals with: | ||
*guardianship of children, | *guardianship of children, | ||
| Line 166: | Line 166: | ||
*orders protecting property. | *orders protecting property. | ||
Unmarried couples can only use the ''[[Family Law Act]]'' to ask for orders about the care of children, child support, and orders protecting people. Married spouses and unmarried spouses can use the act to ask for orders about the care of children, child support, and orders protecting people, as well as orders about spousal support, property and debt, and orders protecting property. | Unmarried couples and parents who aren't spouses can only use the ''[[Family Law Act]]'' to ask for orders about the care of children, child support, and orders protecting people. Married spouses and unmarried spouses can use the act to ask for orders about the care of children, child support, and orders protecting people, as well as orders about spousal support, property and debt, and orders protecting property. | ||
The Supreme Court can make orders under both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. The Provincial Court can only make orders under the parts of the ''[[Family Law Act]]'' that don't deal with property. | The Supreme Court can make orders under both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. The Provincial Court can only make orders under the parts of the ''[[Family Law Act]]'' that don't deal with property. | ||
| Line 174: | Line 174: | ||
::{| width="65%" class="wikitable" | ::{| width="65%" class="wikitable" | ||
!style="width: 25%"| | !style="width: 25%"| | ||
!style="width: 20%" align="center"|''Family Law Act'' | !style="width: 20%" align="center"|Provincial ''Family Law Act'' | ||
!style="width: 20%" align="center"|''Divorce Act'' | !style="width: 20%" align="center"|Federal ''Divorce Act'' | ||
|- | |- | ||
|align="center"|'''Divorce'''|| ||align="center"|Yes | |align="center"|'''Divorce'''|| ||align="center"|Yes | ||
| Line 206: | Line 206: | ||
*[[Child Support]], in particular the section on [[Child Support Guidelines]] | *[[Child Support]], in particular the section on [[Child Support Guidelines]] | ||
==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 his or her 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 | 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. | ||
Parental responsibilities are all about parenting. They include making decisions about where the children go to school, how they are treated when they get sick, whether they <span class="noglossary">will</span> play sports or take music lessons, and about the religion they <span class="noglossary">will</span> be taught. Parental responsibilities can be shared between guardians or divided between them, so that only one guardian can make decisions about a particular parenting issue. When more than one guardian share a parental responsibility, the guardians must try to work together to make decisions about that issue. | Parental responsibilities are all about parenting. They include making decisions about where the children go to school, how they are treated when they get sick, whether they <span class="noglossary">will</span> play sports or take music lessons, and about the religion they <span class="noglossary">will</span> be taught. Parental responsibilities can be shared between guardians or divided between them, so that only one guardian can make decisions about a particular parenting issue. When more than one guardian share a parental responsibility, the guardians must try to work together to make decisions about that issue. | ||
| Line 222: | Line 222: | ||
*[[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]] | ||
==Child support== | ===Child support=== | ||
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 | 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 he or she is a parent. | ||
Normally a parent pays the exact amount of child support the Guidelines tables say should be paid. A parent can pay a smaller amount if the children's time is shared almost equally between the parents | 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. | ||
Normally a parent pays the exact amount of child support the Guidelines tables say should be paid. A parent can pay a smaller amount in a limited number of circumstances, including if: the children's time is shared almost equally between the parents; one or more children live with each parent; or, paying the amount required by the Guidelines would cause serious financial hardship. | |||
The basic amount of child support is intended to cover most of the children's expenses. Some expenses, called ''special or extraordinary expenses'', are not covered in this basic amount. Typically, extraordinary expenses are expenses like daycare and orthodontics — big, important expenses that most but not all children need. Where the children have extraordinary expenses, the parents contribute to those expenses in proportion to their incomes. For example, if one parent earns $30,000 per year and the other earns $20,000, the first parent would have to pay 60% of an extraordinary expense and the other would have to pay 40%. | The basic amount of child support is intended to cover most of the children's expenses. Some expenses, called ''special or extraordinary expenses'', are not covered in this basic amount. Typically, extraordinary expenses are expenses like daycare and orthodontics — big, important expenses that most but not all children need. Where the children have extraordinary expenses, the parents contribute to those expenses in proportion to their incomes. For example, if one parent earns $30,000 per year and the other earns $20,000, the first parent would have to pay 60% of an extraordinary expense and the other would have to pay 40%. | ||
| Line 236: | Line 238: | ||
*[[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 for one of | 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 his or her 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 he or she is 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 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 end of a relationship can cause a spouse to need financial help. After a couple separate, the same amount of money they had during the relationship now has to pay for two rent bills, two hydro bills and two grocery bills. When the couple were together, however, their combined incomes only had to pay for one rent <span class="noglossary">bill</span>, one hydro <span class="noglossary">bill</span> and one phone <span class="noglossary">bill</span>. | The end of a relationship can cause a spouse to need financial help. After a couple separate, the same amount of money they had during the relationship now has to pay for two rent bills, two hydro bills and two grocery bills. When the couple were together, however, their combined incomes only had to pay for one rent <span class="noglossary">bill</span>, one hydro <span class="noglossary">bill</span> and one phone <span class="noglossary">bill</span>. | ||
Spousal support is usually paid every month, although it can be paid in a large, single payment. The amount of spousal support that | Spousal support is usually paid every month for a certain amount of time, although it can be paid indefinitely or be paid in a large, single payment. The amount of spousal support that is paid is usually an amount that the person with more money can afford to pay, using the money left over after that person's basic living expenses have been paid. | ||
When a relationship was very long or the couple are older, spousal support can be paid forever or until they both get pensions or government benefits like CPP. When the couple is younger, spousal support is usually only paid for a specific amount of time. This is because the person getting support has an obligation to try to become financially independent from the person paying support. | When a relationship was very long or the couple are older, spousal support can be paid forever or until they both get pensions or government benefits like CPP. When the couple is younger, spousal support is usually only paid for a specific amount of time. This is because the person getting support has an obligation to try to become financially independent from the person paying support. | ||
| Line 262: | Line 264: | ||
*[[Spousal Support]], in particular the section on [[The Spousal Support Advisory Guidelines]] | *[[Spousal Support]], in particular the section on [[The Spousal Support Advisory Guidelines]] | ||
==Dividing family property and family debt== | ===Dividing family property and family debt=== | ||
Married spouses and unmarried spouses who have lived together for at least two years are each entitled to half of the ''family property'' when their relationships end. Family property includes: | Married spouses and unmarried spouses who have lived together for at least two years are each entitled to half of the ''family property'' when their relationships end. Family property includes: | ||
| Line 300: | Line 302: | ||
Sometimes married people don't get around to getting a divorce for many, many years. That's fine. The only thing a separated married person can't do that an unmarried person can do is marry again. Separated married people can date someone else, live with someone else, be in a unmarried relationship with someone else, have property in their own name, have bank accounts and credit cards in their own name, and so on. | Sometimes married people don't get around to getting a divorce for many, many years. That's fine. The only thing a separated married person can't do that an unmarried person can do is marry again. Separated married people can date someone else, live with someone else, be in a unmarried relationship with someone else, have property in their own name, have bank accounts and credit cards in their own name, and so on. | ||
There | There is only one reason why a court <span class="noglossary">will</span> make a divorce order: the breakdown of the marriage. The breakdown of a marriage can be shown in one of three ways: | ||
#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 his or her 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''. | ||
To get a divorce order, you have to start a court proceeding. You don't have to ask the court for anything else except a divorce. When a couple agrees to get a divorce, they can get a divorce using the do-it-yourself desk order process, and they won't have to go in front of a judge ever. | To get a divorce order, you have to start a court proceeding. You don't have to ask the court for anything else except a divorce, if a divorce is all you need. When a couple agrees to get a divorce, they can get a divorce using the do-it-yourself desk order process, and they won't have to go in front of a judge ever. | ||
'''Further reading:''' | '''Further reading:''' | ||
