Family Law in British Columbia

From Clicklaw Wikibooks

This section offers a short introduction to the principles of family law in British Columbia and the ways that family law problems are resolved. It's written in easy-to-understand language and is meant for people who have never had to deal with the legal system before and for people who are new to Canada.

This section is meant to be read as a whole, from start to finish. The main chapters of this wikibook go into each subject in a lot more detail. When you're done with this section, the chapter The Legal System has a more complete introduction to family law and dispute resolutionThe processes used to conclusively resolve legal disputes including negotiation, collaborative settlement processes, mediation, arbitration and litigation. processes in BC.

Here you will find an overview of common family law problems, the laws that deal with family law problems, the courts that deal with family law problems, and the other ways that family law problems are resolved. This section talks briefly about the law on the care of children, child supportMoney paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses., spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship., the division of propertySomething which can be owned. See "chattels" and "real property." and debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed., separation and divorce, and family law agreements.

Introduction

When a couple breaks up, they may have to decide how a child will be cared for, how property should be divided, and whether someone needs extra money to help pay the bills. Family law, sometimes also called divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of." law or the law on domestic relations, is the area of the law that deals with problems like these.

To understand how family law works in British Columbia, you need to have a basic understanding of the legal system, the laws about family law problems, and how the courts apply those laws when a couple can't agree about something. Since it isn't always necessary to go to court when there's a problem, you also need to know about negotiationIn family law, the process by which an agreement is formed between the parties to a legal dispute resolving that dispute, usually requiring mutual compromise from the parties' original positions to the extent tolerable by each party. See "alternative dispute resolution" and "family law agreements." and mediationA dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator.". These are the most common ways that people solve their problems without the help of a judgeA person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal..

Family law problems are resolved in one of two ways:

  1. the couple bargain with each other and come up with a solution that they both agree to; or,
  2. the couple can't agree and they have to ask someone else to come up with a solution, usually by going to court.

Going to court means that one or both people have or will start a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order.. (Court proceedings are also known as lawsuits, claims or actions.) Going to court is called litigation; trying to come up with an agreement without going to court is called negotiation. Mediation is a kind of negotiation.

There are two courts that handle almost all family law litigation in British Columbia: the Provincial (Family) Court and the Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.". Each court has its own rules, its own forms, and its own process.

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.

It's important to know that 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,
  • someone is threatening to do something serious, like take the children away,
  • there is a risk of violence,
  • someone is threatening to hide property or money, or
  • you just can't agree about how to solve the problem no matter how hard you try.

If you don't have to deal with one or more of these issues, you can always try to negotiate a way of fixing the problem, to find a solution that you both agree with. Couples who need help negotiating sometimes hire someone else to help, someone who has special training helping people resolve problems and make deals, called a mediator. Mediators help to guide the negotiation process and encourage people to see different ways of solving the problem.

Lawyers who mediate family law problems are called family law mediators, and have additional 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 a mediator's credentials before you agree to use that person as your mediator.

Further reading: Chapters on:

Common family law problems

All sorts of people in all sorts of situations can have family law problems, including couples who live together and couples who don't, couples who are married and couples who aren't, and couples who intended to have a child together and couples who didn't. In British Columbia, family law applies to same sex couples in exactly the same way that it applies to opposite-sex couples. The sorts of problems a couple can have when their relationship ends include deciding how the children will be cared for, whether support should be paid, and who will keep which property and which debt.

Family law problems about children include making decisions about:

  • parenting timeA term under the ''Family Law Act'' which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian." or custodyIn family law, an antiquated term used by the ''Divorce Act'' to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. See "access.", which includes deciding where the children will live for most of the time,
  • parental responsibilitiesA term under the ''Family Law Act'' which describes the various rights, duties and responsibilities exercised by guardians in the care, upbringing and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "guardian." or custody, which includes deciding how parents or guardians will make decisions about important things in the children's lives, about issues like health care and education, and
  • parenting time, contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities." or accessUnder the ''Divorce Act'', the schedule of a parent's time with their children under an order or agreement. Access usually refers to the schedule of the parent with the least time with the child. See "custody.", which are about deciding how much time each parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent." and other people will have with the children.

Support means money that one person pays another to help with that person's expenses. Family law problems about support include:

  • child support, money that is paid to help with expenses for the children, like shelter, clothing, medical expenses and food, and
  • spousal support, money that is paid to help with a spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship."'s day-to-day living expenses, like rent, the phone bill and the hydro bill, and sometimes money that is paid to compensate a spouse for effect of economic decisions made during the relationship.

When a couple have property, sometimes including when only one person has property, they have to decide if and how that property will be shared between them. In family law, the property married spouses and unmarried spouses share is called family propertyA term under the ''Family Law Act'' referring to property acquired by either or both spouses during their relationship, as well as after separation if bought with family property. Both spouses are presumed to be equally entitled to share in family property. See "excluded property.", generally only the property that accumulated during a relationship. Family property can include things like houses, bank accounts, and cars. It can also include RRSPs and pensions. Sometimes a couple also has to decide who will take responsibility for debts. Generally, only the debts that accumulated during a relationship will be shared between married spouses and unmarried spouses.

Married spouses also have to decide about whether they want to get divorced. Divorce is the legal termination of a marriage, and only a judge can make you divorced. Most married spouses whose relationship has ended want to get divorced, but it's usually a low priority. Couples who aren't married, including unmarried spouses, never need to get divorced.

All of these family law problems will be discussed in more detail later on.

As you can see, the sorts of family law problems a couple can have sometimes depends on what their relationship was like. In family law, there are four main types of relationship:

  1. Unmarried couples. An unmarried couple probably think of themselves as boyfriend and girlfriend. They may have lived together, but not for too long. Sometimes an unmarried couple involved in a family law problem will have been together only for a very short while ― perhaps just long enough to make a baby.
  2. Unmarried spouses. Unmarried spouses are not legally married. Unmarried spouses have lived together in a loving relationship, and, for most purposes of the Family Law Act, must have lived together for at least two years or for less than two years if the couple have had a child together.
  3. Married spouses. Married spouses have been legally married, by a marriage commissioner or a religious official licensed to perform marriages, and their marriage has been registered with the government where they were married.
  4. Parents. Parents are people who have had a baby together, sometimes including people who helped as the donorA person gives something as a gift or as a bequest, freely and without expectation of payment in return. of sperm, the donor of eggs or a surrogate mother. Parents may be an unmarried couple, unmarried spouses, married spouses or complete strangers. What matters is that they have a childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.".

Further reading: Chapters on:

Resolving family law problems

If you have a family problem now, or might have one in the future, you have two ways to resolve that problem: you can talk to the other person and try make a decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact." about the problem together; or, you can ask someone else to make the decision for you. Really, there's also a third option. You could also walk away refuse to deal with the problem, and wait to see what happens. This is a terrible way of dealing with family law problems.

If you want to try to make a decision about the problem together, you and the other adults involved in the problem will need to agree on a resolution and your decision will usually be written down in a formal agreement. Reaching an agreement usually requires negotiation. You can negotiate face to face, or do it through lawyers. Mediation is a kind of negotiation that uses a specially-trained mediator to help people talk to each other and find a resolution. Collaborative settlementA resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer." processes are a kind of negotiation that uses specially-trained lawyers, and sometimes people who are experts about money or experts about children, who work together to help people talk to each other.

If you want to ask someone to make a decision about the problem, you can go to court or you can go to an arbitrator. If you litigate, you will start a public court proceeding governed by the formal rules of courtThe guidelines governing the court process and the conduct of litigation generally. Each court has its own rules of court. that will conclude months or years later with a trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding on the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." before a judge, if your family problem isn't resolved before then. If you arbitrate, you will start a private proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." governed by rules you can help design that will conclude months later with a hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence." before an arbitrator.

Court proceedings usually end with the judge's orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration.". Arbitration proceedings end with the arbitrator's awardA mandatory direction of an arbitrator, binding and enforceable upon the parties to an arbitration proceeding, made following the hearing of the arbitration trial proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to challenge or appeal the award in court. See "appeal," "arbitration" and "family law arbitrator.". Negotiation usually ends with a settlement that is written down as an agreement, but if you can negotiate a deal in the middle of a court proceeding, the settlement might be written down as a consent orderAn order resolving all or part of a court proceeding, on an interim or final basis, that the parties agree the court should make.. If you negotiate a deal in the middle of an arbitrationA dispute resolution process in which an arbitrator hears the evidence and arguments presented by the parties to a legal dispute and makes an award which resolves the dispute and is binding on the parties. See "alternative dispute resolution" and "family law arbitrator." proceeding, the settlement might be written as a consent award. Orders, awards and agreements are for family law problems that you have now. Agreements are also used for family law problems that you might have in the future.

Further reading: Chapters on:

Family law agreements

A family law agreementAn agreement between two or more persons about family law issues that have arisen or made arise, dealing with their respective rights and obligations to one another, which the parties expect will be binding on them and be enforceable in court. Typical family law agreements include marriage agreements, cohabitation agreements and separation agreements. is a contractAn agreement between two or more people, giving them obligations towards each other that can be enforced in court. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must generally be exchanged between the parties to the contract., like the contract you might have with your landlord or your employer, or the contract you might sign if you leaseAn agreement which requires payment for the use of property, under which the owner of property, like a car or an apartment, gives up the right to occupy and use that property in exchange for a sum of money. A "lessor" is the person who retains ownership of the property and receives money for its use. A "lessee" is the person who purchases the right of possession and use of the property. a car. Family law agreements are used to record a couple's agreement on legal issues that they're dealing with when they make the agreement, or may have to deal with at some point in the future.

There are three kinds of agreement a couple can make about family law issues:

  1. living-togther or cohabitation agreements, agreements that a couple may make when they are living together or plan to live together,
  2. marriage agreements, which a couple may want if they are going to be getting married, and
  3. separation agreements, which a married or unmarried couple may make after their relationship ends.

Cohabitation agreements and marriage agreements are for couples who are just starting a relationship. These sorts of agreements can talk about how the relationship will be managed (who will pay the bills, will there be a joint bank account or a joint credit card, or who will do what parts of the housework), but most often talk about what will happen if the relationship ends. These agreements are usually meant to stop a couple from fighting after a relationship ends by setting out who will get what right from the start.

The law does not require that a couple make a cohabitation agreementAn agreement signed by people who are or have begun to live together in a marriage-like relationship that is intended to govern their rights and obligations in the event of the breakdown of their relationship and, sometimes, their rights and obligations during their relationship. See "family law agreement." or a marriage agreementAn agreement signed by people who are planning on marrying or have married that is intended to govern their rights and obligations in the event of the breakdown of their marriage and, sometimes, their rights and obligations during their marriage. See "family law agreement." when they start to live together or marry. You don't have to sign an agreement like this if you don't want to.

Cohabitation agreements and marriage agreements aren't for everyone. People who are bringing a lot of property, money, or children into a relationship may want a cohabitation agreement or a marriage agreement. People who don't have property or children, are young, and expect to have a long-term relationship may not need an agreement.

Separation agreements are made after a relationship has ended. They talk about how a couple has agreed to deal with things like the care of children, child support and spousal support, and how the family assets will be shared. Separation agreements don't have to cover all the family law problems a couple have. They can deal with just some of those problems and leave the rest for the court to decide.

Normally a couple who are thinking about a separation agreementA contract intended to resolve all or some of the legal issues arising from the breakdown of a relationship and intended to guide the parties in their dealings with one another thereafter. A typical separation agreement is signed following a settlement reached through negotiations and deals with issues including guardianship, parenting arrangements, contact, support, the division of property and the division of debt. See "family law agreements." talk about the issues and try to negotiate a resolution that they are both happy with. It is unusual for just one person to write a separation agreement without talking to the other person. You do not have to sign a separation agreement if you don't want to.

No matter what kind of family law agreement you have signed, you both expect that each of you will follow the agreement, and that the court will enforce the agreement if you don't follow it. The court will generally respect an agreement that a couple willingly signed, as long as the agreement was fair and neither person misled the other person about something important, like money or property.

Further reading: The chapter on:

The courts of British Columbia

There are three levels of court in British Columbia: the Provincial CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a court proceeding. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction.", the Supreme Court, and the Court of AppealThe highest level of court in this province, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts and certain tribunals. See "appeal.". The Court of Appeal is the highest court in the province and the Provincial Court is the lowest. The Provincial Court and the Supreme Court are trial courts, which means that if litigants can't solve a legal problem for themselves, the court can make decisions resolving those problems after hearing from witnesses and considering the other evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." presented at a formal trial. The Court of Appeal is an appealAn application to a higher court for a review of the correctness of a decision of a lower court. A decision of a judge of the Provincial Court of British Columbia can be appealed to the Supreme Court of British Columbia. A decision of a judge of the Supreme Court can be appealed to the Court of Appeal for British Columbia. court, meaning that it doesn't hold trials, it just hears arguments about whether the decision of a trial court was correct or incorrect. Most family law litigation happens in the Provincial Court and the Supreme Court.

The branch of the Provincial Court that deals with family law is called the Provincial (Family) Court. Other branches of the Provincial Court include the Provincial (Youth) Court and the Provincial (Small Claims) Court. (When this resource talks about the Provincial (Family) Court, it will just say the Provincial Court.) The Provincial Court can deal with:

  • guardianship of children under the Family Law Act,
  • parental responsibilities, parenting time and contact under the Family Law Act,
  • child support,
  • spousal support, and
  • orders protecting people.

The Supreme Court can deal with all family law problems. On top of issues about the guardianship and the care of children, child support and spousal support under the Family Law Act, this court can also deal with:

  • divorce,
  • custody and access under the Divorce Act,
  • dividing family property and family debtA term under the ''Family Law Act'' referring to debt owed by either or both spouses that accumulated during the spouses' relationship, as well as after separation if used to maintain family property. Both spouses are presumed to be equally liable for family debt., and
  • 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!

This chart shows which trial court can deal with which family law problem:

Supreme Court Provincial Court
Divorce Yes
Care of children Yes Yes
Time with children Yes Yes
Child support Yes Yes
Children's property Yes
Spousal support Yes Yes
Family property and
family debt
Yes
Protection orders Yes Yes
Financial restraining orders Yes

To get to court, you must start a court proceeding and tell the court what you want. In the Provincial Court, proceedings are started with a court form called an Application to Obtain an OrderA legal document required by the Provincial Court Family Rules to start a court proceeding, which sets out the relief sought by the applicant against the person named as respondent. See "action," "applicant," "pleadings," "relief," and "respondent.". In the Supreme Court, the court form is called a Notice of Family ClaimA legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief.". In the Provincial Court, the person who starts a court proceeding is called the applicantA party who brings an application to the court for a specific order or remedy. Usually refers to the party making an interim application, but in the Provincial Court can mean the person who starts a court proceeding. See also "court proceeding," "application respondent" and "interim application."; in the Supreme Court, this person is the claimantThe person who starts a court proceeding seeking an order for specific remedy or relief against another person, the respondent. See "action" and "respondent.".

Once a court proceeding has started, the person whom the proceeding has been brought against can answerIn law, response to an allegation of fact or to a claim. Usually refers to documents which reply to the allegations or claims made by the other party, such as a "Response to Family Claim" or a "Reply." the claims being made and make new claims. In the Provincial Court, this answer is called a ReplyA legal document required by the Provincial Court Family Rules to respond to a claim made in an applicant's Application to Obtain an Order. See "applicant," "Application to Obtain an Order," "claim," and "Counterclaim.". In the Supreme Court, two court forms can be used: a Response to Family ClaimA legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out their reply to the claimant's claim and the grounds for their reply. See "action," claim," "Notice of Family Claim" and "pleadings." and a CounterclaimA legal document required by the Supreme Court Family Rules in which a respondent sets out a claim for a specific remedy or relief against a claimant. See "Notice of Family Claim" and "Response to Family Claim.". In the Provincial Court and in the Supreme Court, the person answering a court proceeding is called the respondentThe person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim.".

Applicants and respondents (in the Provincial Court), and claimants and respondents (in the Supreme Court), are called the parties to the court proceeding.

After the respondent has filed a replyIn law, an answer or rebuttal to a claim made or a defence raised by the other party to court proceeding or legal dispute. See "action," "claim," "defence" and "rebut." to the claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding., both parties can ask the court to make an order about some or all of the issues raised in the court proceeding. An order is a decision of a judge that requires someone to do something or not do something. For example, a court can make an order that a child live mostly with one partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant.", an order that one party not harass the other, or an order that one party have the family car.

Orders can be made by consentAgreement; the giving of permission for a thing to happen or not happen., which means that they are made with the agreement of both people. If the couple can't agree on the terms of the order, they must go to a hearing before a judge and have the judge decide the terms of the order. There are two types of order: an interim orderAny order made prior to the final resolution of a court proceeding by trial or by settlement; a temporary, rather than permanent or final order. See "application" and "interim application.", which is any order made before trial; and, a final order, which is an order made at the end of a trial. A trial is the final hearing before a judge that concludes the court proceeding.

If you don't like the order you get from the judge, you cans sometimes challenge the order before a higher level of court in a court proceeding called an appeal. An order of the Provincial Court is appealed to the Supreme Court. An order of the Supreme Court is appealed to the Court of Appeal. You cannot appeal an order that you agreed to.

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:

The basic law

There are two kinds of law: laws made by the governments, called legislationAn act; a statute; a written law made by a government. See "regulations.", statutes, acts and regulationsA kind of legislation that provides supplemental rules for a particular act. Regulations are created and amended by the government, not by the legislature, and as a result the legislature has no right to a say in how or what regulations are imposed by government. See "act."; and, laws made by the courts. Laws made by the courts are known as the common lawThe legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts; the system of justice used in non-criminal cases in all provinces and territories except Quebec., precedentHistorical decisions of the courts; the principle that such historic decisions of the court are binding on subsequent judges hearing cases of a similar nature or of a similar circumstances. Templates or sample documents used to draft new documents. See "common law." decisions or case lawThe law as is established and developed by the decisions made in each court proceeding. See "common 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.

The Divorce Act only applies to people who are married or who used to be married to each other (including same sex couples). It deals with:

  • divorce,
  • custody,
  • access,
  • child support, and
  • spousal support.

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 includes same sex couples. This law deals with:

  • guardianship of children,
  • parental responsibilities and parenting time,
  • contact,
  • child support,
  • spousal support,
  • dividing family property and family debt,
  • orders protecting people, 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 actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations." 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.

This chart shows which law deals with which issue:

Provincial Family Law Act Federal Divorce Act
Divorce Yes
Care of children Guardianship and
parental responsibilities
Custody
Time with children Parenting time or
contact
Access
Child support Yes Yes
Children's property Yes
Spousal support Yes Yes
Family property and
family debt
Yes
Protection orders Yes
Financial restraining orders Yes

There is a bunch of other legislation that deals with family law problems, such as the Adoption Act (which deals with adoptionIn family law, the act or process of taking another person's child as one's own. The child becomes the adopting parent's legal child as if the child were the adopting parent's natural child, while the natural parent loses all rights and obligations with respect to the child. See "natural parent."), the Name Act (which deals with changing your name and your children's names), the Land Title Act (which has to do with landReal property; a parcel of real property and the buildings upon it. See also "chattel," "ownership" and "possession." and houses), and the Vital Statistics Act (which has to do with registering births, deaths, marriages, and divorces). The most important of these other laws is the Child Support Guidelines.

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 GuidelinesShort for the Child Support Guidelines, a regulation to the federal ''Divorce Act'', adopted by each province and territory except Quebec, that sets the amount of child support a parent or guardian must pay based on the person's income and the number of children involved.. 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: Chapters on:

The care of children

There are three things that parents must decide when their relationship ends:

  1. where the children will mostly live;
  2. how the parents will make decisions about the important events in the children's lives; and,
  3. how much time each parent will 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 custodyA term used by the ''Divorce Act'' when both spouses have custody of a child, giving both the right to make parenting decisions concerning the child's health, welfare and upbringing but not necessarily requiring or implying that the spouses have equal or near-equal amounts of time with the child. See “access" and "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 their 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 guardianA person charged with the legal care of someone under a legal disability. A term under the ''Family Law Act'' referring to a person, including a parent, who is responsible for the care and upbringing of a child through the exercise of parental responsibilities. See "disability," "parental responsibilities" and "parenting time.", 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 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 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.

Parenting time and contact are the terms used to describe the schedule of the child's time between guardians and and between guardians and people who are not guardians.

Further reading: Chapter on:

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 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 they are a parent.

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 disabilityIn law, a legal incapacity to do certain things, like enter into a contract or start a court proceeding. Legal disabilities include insanity and being under the age of majority. See "age of majority." 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%.

Further reading: Chapter on:

Spousal support

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 their 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 they are 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 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 separationIn family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however it is possible to be separated but still live under the same roof. See "divorce, grounds of.". 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 bill, one hydro bill and one phone bill.

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 obligationA duty, whether contractual, moral or legal in origin, to do or not do something. See "duty." 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 GuidelinesShort for the Spousal Support Advisory Guidelines, an academic paper released by the Department of Justice that describes a variety of mathematical formulas that can be applied to determine how much spousal support should be paid and how long spousal support should be paid for, once a spouse is found to be entitled to receive support. The Advisory Guidelines is not a law although it is pretty useful. 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:

  1. 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.
  2. The Advisory Guidelines is only used when someone is proven to be entitled to receive support; if there is no entitlement, the Advisory Guidelines doesn't apply.
  3. 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.

Further reading: Chapter on:

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:

  • the property the spouses got during their relationship, including real estateIn law, all of the personal property and real property that a person owns or in which they have an interest, usually in connection with the prospect or event of the person's death. as well as personal propertyChattels, goods, money; property other than real property. See "chattel" and "real property.",
  • bank accounts, investments, RRSPs and pensions,
  • the interest of a spouse in a company, business or partnership,
  • debts owed to a spouse, and
  • the increase in value of excluded propertyA term under the ''Family Law Act'' referring to property acquired by a spouse prior to the commencement of the spouses' relationship and certain property acquired by a spouse during the relationship, including gifts, inheritances, court awards and insurance proceedings. A spouse is presumed to be entitled to keep their excluded property without having to share it with the other spouse. See "family property," "gift," and "inheritance." during the relationship.

Each spouse is entitled to keep all of their excluded property. Excluded property includes:

  • the property owned by each spouse on the date they began to live together or the date they married, whichever is earlier,
  • gifts or inheritances received during the relationship,
  • certain kinds of court awards and insurance payments made during the relationship, and
  • property bought during the relationship with excluded property.

Each spouse is also responsible for half of the family debt. Family debt includes:

  • all debts incurred by either spouse during the relationship, and
  • debt incurred after separation, if the debt was incurred to maintain family property.

The spouses' right to a share in the family property and obligation to share in the family debt happens when the spouses separate. Separation doesn't always happen when someone moves out. Spouses can be separated while living together, as long as one of them has said the relationship is over and then the couple has behaved as if it was over, for example by stopping sleeping together or eating together, and stopping doing chores for each other.

Further reading: Chapter on:

Separation and divorce

You don't need a legal document to separate, and you don't need to see a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." or a judge to separate. You just leave the relationship or announce that it's over and then behave like it's over. There is no such thing as a legal separation in British Columbia.

For unmarried spouses and other unmarried couples, their relationship is over the moment they separate. That's it, it's done! There is no such thing as a common-law marriageA form of marriage without government or church licence, and often without ceremony, in which a couple acquired certain rights and obligations toward each other under the common law, banned as a result of the 1753 English ''Marriage Act''. Common-law marriages have never been lawful in British Columbia. See "unmarried spouse.", and unmarried spouses don't need to get divorced.

For a marriage to end, however, married spouses must divorce, and that means they must get a court order saying that they are divorced. A married couple can be separated for many years but still be married if they haven't gotten a divorce order.

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 is only one reason why a court will make a divorce order: it believes that the marriage has broken down. The breakdown of a marriage can be shown in one of three ways:

  1. the couple have separated and have stayed separated for more than one year,
  2. a spouse has had sex with someone other than their spouse, called adulteryA married person's voluntary sexual intercourse with a person other than their spouse; playing the field; fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the other spouse has not consented to or forgiven the adulterous act. See "collusion," "condonation," and "divorce, grounds of.", or
  3. a spouse has been verbally, emotionally or physically abusive to the other spouse, which is what the Divorce Act means by crueltyIn family law, the physical, verbal, emotional or mental abuse of one married spouse by the other. Proof of cruelty is grounds for an immediate divorce, providing that the other spouse has not forgiven the adulterous act. See "condonation" and "divorce, grounds of".

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: Chapter on:

Information for people who are new to Canada

In Canada, men and women have exactly the same rights. There is no difference between the rights a man has and the rights that a woman has, whether they are married to each other or not. Men do not have the right to control women or tell them what they may and may not do, even if a couple are married to one another.

Our courts are open to everybody who lives in Canada, not only to people who have Canadian citizenship. People who are new to Canada can make a claim in court, regardless of their citizenship status, and regardless of whether they have permanent residency in Canada or not.

There is no law that requires someone who is unhappy in a marriage to stay in that marriageA legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits and obligations. See also "conjugal rights," "consortium" and "marriage, validity of.". If someone wants to leave a relationship, they can, and that person does not need the permission or agreement of the other spouse to leave.

In Canada, there is no requirement for either dowryIn some legal systems, the real property and personal property brought into a marriage by the wife; the property given to a wife by her husband in return for her marriage to him. There is no legal entitlement to dowry in Canada, and agreements for dowry will not normally be enforceable. See "chattels" and "real property." or dowerThe entitlement of a wife to a portion of her husband’s estate on his death under the common law. This right is extinguished in British Columbia and is replaced by the provisions of the ''Wills, Estates and Succession Act'' that give a surviving spouse certain rights to share in the estate of the deceased spouse. to be paid when a couple marries or divorces. Even if a religion requires such a payment, the religious duty is not legally bindingIn law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be adopted by a lower court. See "contempt of court" and "precedent." in Canada.

If an arranged marriage has been proposed, the parties must still agree to the marriage of their own free will. There is no law that allows someone to be forced to marry someone else. An agreement between relatives about a marriage is not legally binding on the people who are supposed to get married.

When one spouse sponsors another spouse to come to Canada, that person will usually sign a sponsorship agreement with the government. This agreement requires the sponsor to support the person who is coming to Canada, whether they stay married, separate or divorce. This agreement is only between the sponsor and the government. If the person coming to Canada needs spousal support, for example, they can ask the court for an order that spousal support be paid.

Separation does not automatically mean that someone new to Canada will have to leave the country. People who are permanent residents, for example, will usually be allowed to stay, regardless of what is happening in their relationship with their sponsors. You should, however, speak to an immigration lawyer just to be sure.

In Canada you must have a court order to divorce and legally end a marriage. Religious divorces are not recognized in Canada as divorces that legally end a marriage. The decisions of religious tribunals about how a separated couple will share their property or manage the care and control of their children may not be recognized in British Columbia.

Further reading:


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