Difference between revisions of "The Legislation on Family Law"

The most important statutes in family law 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]].  

 

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

The ''[[Divorce Act]]'', the ''[[Family Law Act]]'' and the [[Child Support Guidelines]] are central to family law in British Columbia. 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 section [[The Law for Family Matters]] within the chapter [[Introduction to the Legal System for Family Matters]] has a detailed discussion of the federal and provincial authority to make laws.

Only the ''[[Divorce Act]]'' deals with divorce. Only the ''[[Family Law Act]]'' deals with the guardianship of children and the division of property and debts. Both acts deal with the care of children, children's parenting schedules, child support, and spousal support.

One of the most important distinctions between these two laws, as <span class="noglossary">will</span> be seen below, lies in how they define key words like ''spouse'', ''parent'' and ''child''. Depending on the particular law you're dealing with, you may fall inside these definitions or outside of them.

The [[Child Support Guidelines]], often referred to as just the ''Guidelines'', is a federal regulation that 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 and territory, which set out how much child support should be paid based on the payor's income and the number of children support is being paid for.

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 Advisory Guidelines formulas, and the way the courts have dealt with the Advisory Guidelines, are discussed in more detail in the chapter [[Spousal Support]] within the section [[The Spousal Support Advisory Guidelines]].

The provincial ''[http://canlii.ca/t/8456 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 the title. The ''[http://canlii.ca/t/848q 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.

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 ''[http://canlii.ca/t/84fx Wills Act]'' and the ''[http://canlii.ca/t/840g Estate Administration Act]''. The ''[http://canlii.ca/t/84fx Wills Act]'' says that:

 

 

<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>

 

 

The ''[http://canlii.ca/t/840g 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 allotted to his or her spouse, regardless of whether they are together or have been separated for two years or 20 years. Section 85 says that:

 

<blockquote><tt>(2) This section applies if an intestate dies leaving a spouse and issue.</tt></blockquote>

<blockquote><blockquote><tt>(a) if the intestate dies leaving a spouse and one child, 1/2 goes to the spouse;</tt></blockquote></blockquote>

<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 ''[http://canlii.ca/t/84g0 Wills Variation Act]'' allows close relatives, including unmarried 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.

{{REVIEWED | reviewer = [[JP Boyd]], May 12, 2013}}