Difference between revisions of "Further Topics and Overlapping Legal Issues in Family Law"

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| Related =  
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[[Naming and Changes of Name]]
[[Aboriginal Families]]{{·}}[[Immigrants and Family Law]]{{·}}[[Same-Sex Relationships and Issues Affecting Transgendered and Transsexual People]]{{·}}[[Naming and Changes of Name]]{{·}}[[Wills and Estates Issues in Family Law]]{{·}}[[Conflict of Laws]]
}}
}}
{{JP Boyd on Family Law TOC|expanded = other}}{{JPBOFL Editor Badge
{{JP Boyd on Family Law TOC|expanded = further}}{{JPBOFL Editor Badge
|ChapterEditors = [[Gayle Raphanel]] and [[Rhaea Bailey]]
|ChapterEditors = [[Rhaea Bailey]], [[Taruna Agrawal]], [[Todd Bell]], [[Bob Mostar]] and [[Mark Norton]]
}}
}}
Problems like children's parenting arrangements, the payment of support, and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella.  
==Further topics for specific communities==
While family law has evolved to treat many minority groups, such as same-sex couples, in the same way as it treats the majority, this is not always true. People are sometimes subject to different laws in certain circumstances.  


This chapter deals with the more common of these other issues, including [[Adoption|adoption]], [[Family Violence|family violence and protection orders]], [[Parentage and Assisted Reproduction|determining parentage]], [[Naming and Changes of Name|changing names]], and more. This first section is a bit of a grab bag and takes a look at a selection of relatively common family law problems. It talks about issues affecting the LGBTQ communities, wills and estates law, immigration law, parental support, and what happens when people and property are located in different legal jurisdictions.
The resource you're reading has been updated to explain and recognize some of the ways laws apply differently to specific communities. Parts of this chapter deal with further topics unique to [[Aboriginal Families|Aboriginal families]] and/or those living on reserves, [[Immigrants and Family Law|newcomers to Canada]] and those who support or rely on them, and [[Same-Sex Relationships and Issues Affecting Transgendered and Transsexual People| the LGBTQ community]].


===Aboriginal families===
Aboriginal people exist in a unique legal environment arising from the fact that they are the first peoples of what is now known as Canada. Aboriginal people's longstanding occupancy and use of these lands give rise to ''Aboriginal rights'' which became constitutionally protected when s. 35 of the ''Constitution Act, 1982'' was enacted over 30 years ago. The ''Constitution'' recognizes and affirms aboriginal and treaty rights of First Nations, Inuit and Métis peoples of Canada.
This chapter focuses on issues in family law that affect BC's Aboriginal families. While all of the usual factors apply to Aboriginal families, courts must also pay attention to Aboriginal ancestry, culture and traditions when they make decisions, including determining the best interests of Aboriginal children. This is because Aboriginal children have the right to keep a connection to their culture and heritage, which are the strong foundations of many Aboriginal families. This section briefly reviews particular issues unique to Aboriginal families, including:
*the care of children,
*child support
*spousal support, and
*family property and family debt.


==Wills and estates issues==
The section on [[Aboriginal Families]] also briefly addresses issues caused by the ''[http://canlii.ca/t/7vhk Indian Act]'', a law which has allowed the government to control most aspects of Aboriginal life since its inception in 1876.


''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a dead person's estate is distributed when there is a valid will, how a dead person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a dead person's will. In family law, issues concerning a person's will usually only come up when a couple have separated or are getting a divorce.
===Newcomers to Canada and their families===
Many Canadian families are the product of Canadian citizens or permanent residents who partner with people from other countries. ''Sponsorship'' by a Canadian citizen or permanent resident of a foreign spouse this creates legal issues that are unique to families with members who are immigrants or refugees.  


Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]'' ("WESA"). Section 37 sets out the basic requirements for a valid will:
In 2017, the Canadian government introduced some important changes to the rules surrounding sponsored spouses. The updates in this chapter address those changes and provides information on:


<blockquote><tt>'''37''' (1) To be valid, a will must be</tt></blockquote>
* support obligations of sponsors, and
* agencies that help immigrants and refugees.


<blockquote><blockquote><tt>(a) in writing,</tt></blockquote></blockquote>
===LGBQT issues in family law===
<blockquote><blockquote><tt>(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and</tt></blockquote></blockquote>
Not too long ago, this resource had an entire chapter about the particular issues affecting those in same-sex relationships. A stand-alone chapter for same-sex relationships, however, is no longer necessary.  
<blockquote><blockquote><tt>(c) signed by 2 or more witnesses in the presence of the will-maker.</tt></blockquote></blockquote>


British Columbia courts have said that people are presumed to have a moral duty to provide for members of their immediate family. Under WESA, spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate.
For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist because of legislation has been on the wane. From the [http://canlii.ca/t/5239 Little Sisters decision] on censorship to ''[http://canlii.ca/t/1frkt Egan v. Canada]'', [1995] 2 SCR 513 on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed <span class="noglossary">suit</span>.


A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of WESA. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, which is adjusted if the surviving spouse is not the other parent of the deceased's surviving children, and the remainder being split with any surviving children.
Gays and lesbians are just as entitled as straight people to pursue claims relating to:
*the care of children,  
*child support,  
*spousal support, and
*the division of property


If a person dies without a will, only people who qualify as the person's spouse and children can benefit from the provisions of WESA. If the dead person had been married or in a marriage-like relationship which either party had terminated prior to the first person’s death, the former spouse can’t make a claim under the act.
Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.


If a person dies with a will which gives a benefit to a spouse, but either party had terminated the relationship prior to the will-maker’s death, the benefit is cancelled.
This said, legal uncertainty exists for people who are trans or gender non-binary, at least in some contexts. The section on ''[[Same-Sex Relationships and Issues Affecting Transgendered and Transsexual People#Issues affecting transgendered and transsexual people|Issues affecting transgendered and transsexual people]]'' discusses some of the difficulties that the law has in serving people who traverse the gender spectrum.


==The conflict of laws==
==Overlapping legal issues==


The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:
Problems like children's parenting arrangements, the payment of support, and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella.  
 
*spouses have property in different provinces or countries,
*the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or
*the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.
 
The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.
 
===Children===
 
Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.
 
====''Divorce Act'' orders====
 
When a court order about children has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 5 of the act. The courts of British Columbia will hear an application for an order different than the original order as long as:
 
#either spouse normally lives in this province, or
#both spouses agree that our courts should deal with the matter.
 
Since the ''Divorce Act'' applies to the whole of Canada, ''Divorce Act'' orders have effect throughout Canada. An order made under the ''Divorce Act'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.
 
====Other orders made outside British Columbia====
 
When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k Children's Law Reform Act]'' of Ontario, or the laws of another country altogether, the order can be ''recognized'' by the courts of British Columbia under s. 75 of our ''[[Family Law Act]]''. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.
 
Under Division 7 of Part 4 of the ''[[Family Law Act]]'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in meddling with the orders of another court. Our court will usually hear an application for an order different than the original order if:
 
#the child normally lives in British Columbia, or
#the child is physically present in the province but will be at serious risk unless the original order is changed.
 
===Child support and spousal support===
 
Different rules apply when orders about support are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.
 
====''Divorce Act'' orders====
 
When a court order about support has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the act. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a ''confirmation hearing'' under s. 19. If that court confirms the provisional order, the order will be changed. There's more information about this in the [[Making_Changes_to_Child_Support|Making Changes]] section of the chapter on [[Child Support]], under the heading "[[Making_Changes_to_Child_Support#Orders_made_outside_British_Columbia|Orders made outside British Columbia]]."
 
An order for child support or spousal support made under the ''[[Divorce Act]]'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.
 
====Other orders made outside British Columbia====
 
Where a support order was made under the law of another province or territory, the order can be ''registered'' in the courts of British Columbia under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'', and can be enforced as if the order were an order of our courts by the person to whom the payments are owed, the ''recipient'', under the ''[[Family Law Act]]'', or by the recipient and the Family Maintenance Enforcement Program under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.
 
The ''Interjurisdictional Support Orders Act'' also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the United Kingdom, the United States, Australia and New Zealand.
 
===Property and debt===
 
The ''[[Family Law Act]]'' is the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and very difficult to understand. You will almost certainly need to speak to a lawyer to figure them out.
 
Under s. 106 of the ''Family Law Act'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a property claim if:
 
*the person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'',
*the parties agree that the court should deal with the claim,
*either party was "habitually resident" in the province when the court proceeding started, or
*there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the ''[[Divorce Act]]'' has been started here.
 
If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:
 
*dividing property here to take into <span class="noglossary">account</span> the value of the property outside the province,
*making orders about respecting the care, management, or use of the property outside the province, and
*making orders about ownership of the property outside the province.
 
More information about how the ''Family Law Act'' deals with property outside of British Columbia is available in the [[Dividing_Property_%26_Debt_in_Family_Law_Matters|Dividing Property & Debt]] section of the chapter on [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]], under the heading "[[Dividing_Property_%26_Debt_in_Family_Law_Matters#Determining_jurisdiction|Determining jurisdiction]]".
 
==Resources and links==
 
===Legislation===
 
* ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]''
* ''[http://canlii.ca/t/7w02 Civil Marriage Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84g5 Adoption Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
 
===Links===


*[http://www.clicklaw.bc.ca/global/search?k=trans Clicklaw resources on trans issues]
This chapter takes a look at a selection of relatively common family law problems. It talks about issues affecting:  
*[http://www.clicklaw.bc.ca/resource/1073 Legal Services Society booklet, Sponsorship Breakdown]


*the overlap between wills and estates law and family law, and
*what happens when people and property are located in different legal jurisdictions.


{{REVIEWED | reviewer = [[Gayle Raphanel]], July 8, 2014}}
{{REVIEWED | reviewer = [[Nate Russell]], July 20, 2017}}


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Latest revision as of 14:25, 21 August 2017

Further topics for specific communities

While family law has evolved to treat many minority groups, such as same-sex couples, in the same way as it treats the majority, this is not always true. People are sometimes subject to different laws in certain circumstances.

The resource you're reading has been updated to explain and recognize some of the ways laws apply differently to specific communities. Parts of this chapter deal with further topics unique to Aboriginal families and/or those living on reserves, newcomers to Canada and those who support or rely on them, and the LGBTQ community.

Aboriginal families

Aboriginal people exist in a unique legal environment arising from the fact that they are the first peoples of what is now known as Canada. Aboriginal people's longstanding occupancy and use of these lands give rise to Aboriginal rights which became constitutionally protected when s. 35 of the Constitution Act, 1982 was enacted over 30 years ago. The Constitution recognizes and affirms aboriginal and treaty rights of First Nations, Inuit and Métis peoples of Canada.

This chapter focuses on issues in family law that affect BC's Aboriginal families. While all of the usual factors apply to Aboriginal families, courts must also pay attention to Aboriginal ancestry, culture and traditions when they make decisions, including determining the best interests of Aboriginal children. This is because Aboriginal children have the right to keep a connection to their culture and heritage, which are the strong foundations of many Aboriginal families. This section briefly reviews particular issues unique to Aboriginal families, including:

  • the care of children,
  • child support
  • spousal support, and
  • family property and family debt.

The section on Aboriginal Families also briefly addresses issues caused by the Indian Act, a law which has allowed the government to control most aspects of Aboriginal life since its inception in 1876.

Newcomers to Canada and their families

Many Canadian families are the product of Canadian citizens or permanent residents who partner with people from other countries. Sponsorship by a Canadian citizen or permanent resident of a foreign spouse this creates legal issues that are unique to families with members who are immigrants or refugees.

In 2017, the Canadian government introduced some important changes to the rules surrounding sponsored spouses. The updates in this chapter address those changes and provides information on:

  • support obligations of sponsors, and
  • agencies that help immigrants and refugees.

LGBQT issues in family law

Not too long ago, this resource had an entire chapter about the particular issues affecting those in same-sex relationships. A stand-alone chapter for same-sex relationships, however, is no longer necessary.

For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist because of legislation has been on the wane. From the Little Sisters decision on censorship to Egan v. Canada, [1995] 2 SCR 513 on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the Charter of Rights and Freedoms to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed suit.

Gays and lesbians are just as entitled as straight people to pursue claims relating to:

  • the care of children,
  • child support,
  • spousal support, and
  • the division of property

Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.

This said, legal uncertainty exists for people who are trans or gender non-binary, at least in some contexts. The section on Issues affecting transgendered and transsexual people discusses some of the difficulties that the law has in serving people who traverse the gender spectrum.

Overlapping legal issues

Problems like children's parenting arrangements, the payment of support, and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella.

This chapter takes a look at a selection of relatively common family law problems. It talks about issues affecting:

  • the overlap between wills and estates law and family law, and
  • what happens when people and property are located in different legal jurisdictions.
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Nate Russell, July 20, 2017.


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