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Difference between revisions of "Introduction to Family Law in British Columbia"
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Introduction to Family Law in British Columbia (view source)
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There are two main laws that apply to family law problems. A law, in this sense of the word, means a rule made by the government. These laws are the federal ''Divorce Act'' and the provincial ''Family Law Act''. Each law deals with different issues, although they share a lot of issues in common. For some couples, both laws will apply; for others, only one of these laws will apply, probably the ''Family Law Act''. | There are two main laws that apply to family law problems. A law, in this sense of the word, means a rule made by the government. These laws are the federal ''Divorce Act'' and the provincial ''Family Law Act''. Each law deals with different issues, although they share a lot of issues in common. For some couples, both laws will apply; for others, only one of these laws will apply, probably the ''Family Law Act''. | ||
You don't have to go to court, no matter how bad your problem is. The only times you must go to court are when: | You don't have to go to court, no matter how bad your problem is. The only times you ''must'' go to court are when: | ||
#you need a divorce; | #you need a divorce; | ||
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Lawyers who mediate family law problems are called ''family law mediators'', and have special training in mediation apart from their training as lawyers. Because there are no rules about who can and who can't call themselves a mediator, you should look carefully at the mediator's credentials before agreeing to use that person as your mediator. | Lawyers who mediate family law problems are called ''family law mediators'', and have special training in mediation apart from their training as lawyers. Because there are no rules about who can and who can't call themselves a mediator, you should look carefully at the mediator's credentials before agreeing to use that person as your mediator. | ||
'''Further Reading: | '''Further Reading:''' | ||
*The Legal System | *The Legal System | ||
*Alternatives to Court | *Alternatives to Court | ||
*Children > Parenting After Separation | *Children > Parenting After Separation | ||
==Common Family Law Problems== | ==Common Family Law Problems== | ||
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#Married Spouses: Married spouses have been legally married, by a marriage commissioner or a religious official licenced to perform marriages, and their marriage has been registered with the government where they were married. | #Married Spouses: Married spouses have been legally married, by a marriage commissioner or a religious official licenced to perform marriages, and their marriage has been registered with the government where they were married. | ||
'''Further Reading: | '''Further Reading:''' | ||
*Children | *Children | ||
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*Family Assets | *Family Assets | ||
*Marriage & Divorce > Marriage | *Marriage & Divorce > Marriage | ||
*Unmarried Couples | *Unmarried Couples | ||
==The Courts== | ==The Courts of British Columbia== | ||
There are three levels of court in British Columbia: the Provincial Court, the Supreme Court and the Court of Appeal. The Court of Appeal is the highest court in the province and the Provincial Court is the lowest. Most family law litigation happens in the Provincial Court and the Supreme Court. | There are three levels of court in British Columbia: the Provincial Court, the Supreme Court and the Court of Appeal. The Court of Appeal is the highest court in the province and the Provincial Court is the lowest. Most family law litigation happens in the Provincial Court and the Supreme Court. | ||
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Over time, the terms of an order may need to be changed. If there has been a serious change in your circumstances or in the circumstances of the children since an order was made, you can go back to court and ask that the order be changed to suit the new circumstances. This is called ''varying'' an order. | Over time, the terms of an order may need to be changed. If there has been a serious change in your circumstances or in the circumstances of the children since an order was made, you can go back to court and ask that the order be changed to suit the new circumstances. This is called ''varying'' an order. | ||
'''Further Reading: | '''Further Reading:''' | ||
*The Legal System | *The Legal System | ||
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*The Legal System > Starting an Action | *The Legal System > Starting an Action | ||
*The Legal System > Defending an Action | *The Legal System > Defending an Action | ||
*The Legal System > Interim Applications | *The Legal System > Interim Applications | ||
==The | ==The Law== | ||
There are two kinds of law: laws made by the governments, called ''legislation'', ''statutes'' or ''acts''; 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 law suits that the courts have heard over hundreds of years, and the decisions the courts made in those different court proceedings. | There are two kinds of law: laws made by the governments, called ''legislation'', ''statutes'' or ''acts''; 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 law suits that the courts have heard over hundreds of years, and the decisions the courts made in those different court proceedings. | ||
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The Child Support Guidelines sets out the rules about how much child support should be paid according to the income of the person paying child support and the number of children child support is being paid for. For most people, the amount that should be paid is set out in a table at the end of the Guidelines. The Guidelines also sets out the rules about when child support can be paid in an amount different than what the tables say should be paid. | The Child Support Guidelines sets out the rules about how much child support should be paid according to the income of the person paying child support and the number of children child support is being paid for. For most people, the amount that should be paid is set out in a table at the end of the Guidelines. The Guidelines also sets out the rules about when child support can be paid in an amount different than what the tables say should be paid. | ||
'''Further Reading: | '''Further Reading:''' | ||
*The Legal System | *The Legal System | ||
*The Legal System > The Law | *The Legal System > The Law | ||
*Legislation | *Legislation | ||
*Child Support > The Guidelines | *Child Support > The Guidelines | ||
==The Care | ==The Care of Children== | ||
There are three things that parents must decide when their relationship ends: where the children will mostly live; how the parents will make decisions about the important events in the children's lives; and, how much time each parent will have with the children. | There are three things that parents must decide when their relationship ends: where the children will mostly live; how the parents will make decisions about the important events in the children's lives; and, how much time each parent will have with the children. | ||
Custody sort of means where 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 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 who isn't a guardian, 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 will play sports or take music lessons, and about the religion they will be taught. Parental responsibilities can be shared between guardians or divided between them, so that only on 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. | |||
Parenting time and contact are the terms used to describe the schedule of the child's time between guardians and people who are not guardians. | |||
'''Further Reading:''' | |||
*Children > Custody | |||
*Children > Guardianship | |||
*Children > Access | |||
==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 not a fee a parent must pay to see the children. Child support has nothing to do with custody or with guardianship; it has nothing to do with access, parenting time or access, or contact; it has nothing to do with whether a parent is a good parent or a bad parent. | |||
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 not a fee a parent must pay to see the children. Child support has nothing to do with custody, | |||
Child support is almost always paid every month in the amount set out in the 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 full-time. | Child support is almost always paid every month in the amount set out in the 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 full-time. | ||
Normally a parent pays the exact amount of child support the Guidelines tables say should be paid. A parent can pay a smaller amount | 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, if one or more children live with each parent or if 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 extraordinary expenses, are not covered in this basic amount. Typically, extraordinary expenses are expenses like daycare and orthodontics | The basic amount of child support is intended to cover most of the children's expenses. Some expenses, called 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 expense 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%. | Where the children have extraordinary expenses, the parents contribute to those expense 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%. | ||
'''Further Reading:''' | |||
*Child Support | |||
*Child Support > The Guidelines | |||
==Spousal Support== | |||
Spousal support is money paid by one spouse to the other, to help the other spouse meet his or her living expenses and sometimes to compensate that person for the financial consequences of decisions the spouses made during their relationship. Spousal support is not paid automatically just because a couple were in a married or unmarried spousal relationship, the person who needs support must prove that he or she is entitled to get support. | |||
Financial decisions during a relationship can cause someone to be entitled to compensation if the couple decided that one of them should quit work and stay at home to raise the children and be a homemaker. Someone 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. | Financial decisions during a relationship can cause someone to be entitled to compensation if the couple decided that one of them should quit work and stay at home to raise the children and be a homemaker. Someone 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 someone to need financial help. After a couple separate, the same amount of income 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 bill, one hydro bill and one phone bill. | The end of a relationship can cause someone to need financial help. After a couple separate, the same amount of income 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 bill, one hydro bill and one phone bill. | ||
Spousal support is usually paid every month. The amount of spousal support that should be paid is usually an amount that the person with more money can afford to pay, | Spousal support is usually paid every month, although it can be paid in a large, single payment. The amount of spousal support that should be 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 for ever. 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 for ever 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. | ||
The amount of spousal support that should be paid and the length of time support should be paid can also be calculated using the Spousal Support Advisory Guidelines. The Advisory Guidelines uses two formulas, one for when a couple has children and one for when they don't, that calculate how much support should be paid according to the length of the relationship and each party's annual income. There are three very important things to know about the Advisory Guidelines: | The amount of spousal support that should be paid and the length of time support should be paid can also be calculated using the Spousal Support Advisory Guidelines. The Advisory Guidelines uses two formulas, one for when a couple has children and one for when they don't, that calculate how much support should be paid according to the length of the relationship and each party's annual income. There are three very important things to know about the Advisory Guidelines: | ||
The Advisory Guidelines is not a law and there is no rule saying that the Advisory Guidelines formulas must be used. Despite this, lawyers and the court use the Advisory Guidelines almost all the time when spousal support is going to be paid. | *The Advisory Guidelines is not a law and there is no rule saying that the Advisory Guidelines formulas must be used. Despite this, lawyers and the court use the Advisory Guidelines almost all the time when spousal support is going to be paid. | ||
The Advisory Guidelines is only used when some is proven to be entitled to receive support; if there is no entitlement the Advisory Guidelines don't apply. | *The Advisory Guidelines is only used when some is proven to be entitled to receive support; if there is no entitlement the Advisory Guidelines don't apply. | ||
The formulas the Advisory Guidelines describes are very complicated. In particular, the formulas that are used when a couple has children cannot be done without a computer program | *The formulas the Advisory Guidelines describes are very complicated. In particular, the formulas that are used when a couple has children cannot be done without a computer program. | ||
Only people who are married spouses or unmarried spouses can ask for spousal support. Married spouse must ask for spousal support within two years of their divorce. Unmarried spouses must ask for spousal support within two years of their separation. | |||
Spousal Support | '''Further Reading:''' | ||
Spousal Support > The Advisory Guidelines | |||
*Spousal Support | |||
*Spousal Support > The Advisory Guidelines | |||
==Dividing Family Property and Family Debt== | |||
Married people are presumed to have a one-half interest in everything that is a family asset, regardless of who bought it or when it was bought. A family asset is any asset that was normally used by the family, such as the family home, the car, the couple's bank accounts and so forth. Family assets also include things like RRSPs and pensions. | Married people are presumed to have a one-half interest in everything that is a family asset, regardless of who bought it or when it was bought. A family asset is any asset that was normally used by the family, such as the family home, the car, the couple's bank accounts and so forth. Family assets also include things like RRSPs and pensions. | ||
