Difference between revisions of "The Legislation on Family Law"

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.

==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 Law for Family Matters|The Law]] 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.

The Child Support Guidelines is a federal regulation which 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, which set out how much child support should be paid based on the payor's income and the number of children.

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 Guidelines, and the exceptions to the Guidelines tables, are discussed in a lot more detail in the section Child Support.

The Spousal Support Advisory Guidelines (SSAG), often called the ''Advisory Guidelines'', is not a law. It is an academic paper that describes a number of mathematical formulas that can be used to calculate how much spousal support should be paid and how long spousal support should be paid, once a person's entitlement to receive spousal support has been proven.

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

==Other Legislation Related to Family Law Issues==

The federal ''Marriage (Prohibited Degrees) Act'' sets out the degrees of consanguinity — relatedness by blood — a couple cannot have if they are to marry each other. The federal ''Civil Marriage Act'' defines marriage as the "union of two persons" rather than "the union of a man and a woman," allowing same-sex couples to marry, and makes related changes to other federal legislation like the ''Divorce Act'', allowing same-sex couples to divorce, and the ''Income Tax Act''.

The provincial ''Marriage Act'' deals with the formalities of marriage, and covers such things as who is entitled to marry people, marriage licences, and the age at which a couple can legally marry.

The provincial ''Age of Majority Act'' sets the age of majority at 19. The provincial ''Infants Act'' describes the legal capacity of children, such as their ability to enter into legally binding contracts or marriage settlements.

The provincial ''Adoption Act'' deals with such things as who can give a child up for adoption, who may adopt a child and the general ins and outs of the adoption process.

The provincial ''Parental Responsibility Act'' says that parents whose children have been convicted of causing damage or loss of property may be held responsible for loss caused their children's offences, up to a maximum of $10,000.

===Child Protection===

On 1 October 2002, the Children's Commissioner, which investigated serious injuries or deaths suffered by children, and the Office of the Child, Youth and Family Advocate, which investigated issues involving children in the care of or involved with governmental and private agencies, were replaced by the Office for Children and Youth. On 18 May 2006, this was in turn replaced by the Representative for Children and Youth, operating under the ''Representative for Children and Youth Act''. The goals of the representative, who has significant oversight powers, are to:

#foster respect for the fundamental rights of all children and youth in British Columbia;

#support and promote the rights of children and youth in the care of the state;

#promote awareness and understanding of key principles in the United Nations Convention on the Rights of the Child;

#monitor the effectiveness and responsiveness of services and programs in British Columbia;

#work collaboratively with public bodies, including the Chief Coroner and the Public Guardian and Trustee, to build an integrated, #responsive process for the review and investigation of critical injuries and death; and,

#draw on lessons learned to support and promote prevention initiatives and best practices with respect to intervention.

The provincial ''Child, Family and Community Service Act'' gives the government, specifically the Ministry for Children and Family Development, the power to apprehend children believed to be suffering from child abuse or neglect, or who are at risk of child abuse or neglect. The act regulates the conditions under which children can be seized, the conditions in which they may be placed in the care of the government, and the authority and powers of child protection workers.

===Enforcement of Child Support and Spousal Support===

The provincial ''Family Maintenance Enforcement Act'' establishes the Family Maintenance Enforcement Program, an government agency with the authority to enforce support orders, and sets the extent of that authority. The provincial ''Court Order Enforcement Act'' sets out the ways in which money awarded under a judgment can be collected, such as by liens against property, the garnishment of wages and so forth.

The provincial ''Interjurisdictional Support Orders Act'' allows support orders made outside of British Columbia to be registered in this province for enforcement. It also lets someone affected by that order to start a process here that may result in the variation of that order in the court that originally made the order. The act does not apply to all support orders, only to the orders of the countries, provinces and states which have a reciprocal agreement with British Columbia.

The provincial ''Land (Spouse Protection) Act'' protects the rights of marries spouses and unmarried to their interest in the family home by allowing them to file an entry on the title of the property, but the protection ends once the parties divorce.  

The provincial ''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 title. The ''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.