Difference between revisions of "Introduction to Family Law (No. 114)"

From Clicklaw Wikibooks
m (Going to court)
m (Family Law Act)
Line 46: Line 46:
 
{| class="wikitable"
 
{| class="wikitable"
 
!style="width: 30%" align="center"|
 
!style="width: 30%" align="center"|
!style="width: 15%" align="center"|'''''Married Spouses'''''
+
!style="width: 15%" align="center"|Married Spouses
!style="width: 15%" align="center"|'''''Unmarried Spouses'''''
+
!style="width: 15%" align="center"|Unmarried Spouses
!style="width: 15%" align="center"|'''''Parents'''''
+
!style="width: 15%" align="center"|Parents
!style="width: 15%" align="center"|'''''Child's Caregivers'''''
+
!style="width: 15%" align="center"|Child's Caregivers
 
|-
 
|-
 
|align="left"|Divorce||align="center"| X ||align="center"|  ||align="center"|  ||align="center"|  
 
|align="left"|Divorce||align="center"| X ||align="center"|  ||align="center"|  ||align="center"|  

Revision as of 22:10, 10 February 2019

Family law deals with legal issues that impact families. Family breakups, divorce, getting married, adoption, and family violence all fall within this area of law. Learn the basics of family law.

Understand the legal framework

Family law deals with family issues

Often, these issues involve couples that have been in a relationship and have now separated. But family issues can also involve people who have never been in a long-term relationship, like a couple who never dated but have a child together. They can involve people who have never been in a romantic relationship at all, like a grandparent who would like to spend time with or care for a grandchild.

In BC, family law applies to people in same-sex relationships exactly as it does to people in opposite-sex relationships. There is no legal difference between heterosexual relationships and gay and lesbian relationships.

This information provides an introduction to family law and the courts that deal with family law issues. It also defines some common legal words and phrases used in family law.

Common family law problems

When a couple separates, they must make many decisions. For example:

  • Does one spouse need financial support from the other spouse? Can the other spouse afford to pay it, and if so, how much and for how long?
  • Who will stay in the family home? Can everybody still live together, or does someone need to move out?
  • How will property be divided? How will debts be shared?
  • If there are children, where will they live? How will decisions about their care be made? How will the parents share time with the children?
  • Are the children entitled to ongoing financial support from a parent? If so, which parent should pay child support and what amount?

Different rules for different relationships

Family law deals with all of these decisions and more. But not all couples need to deal with all these issues. The decisions a couple must make and the law that applies change depending on the type of relationship the couple is in.

Family law involves four types of relationship:

  • Married spouses: Married couples are legally married and require a divorce to end their legal relationship.
  • Unmarried spouses: Unmarried spouses, also called common-law spouses, have lived together in a “marriage-like relationship” for at least two years. For spousal support claims, it includes people who have lived together for less than two years and have had a child together. Unmarried spouses don’t require a divorce to end their legal relationship. Their relationship ends when they separate.
  • Parents: Parents have had a child together and can be married spouses, unmarried spouses, in a dating relationship, or not in a relationship with each other at all. Parents can also be people who have had a child by adoption or assisted reproduction, or people who have helped a couple to have a child by assisted reproduction, by donating eggs or sperm, or by being a surrogate mother.
  • Child’s caregivers: People who have a significant role in a child’s life but aren’t the child’s parents.

Family law legislation

Family law involves two different laws that apply depending on the type of relationship in play.

Divorce Act

As a federal law, the Divorce Act applies throughout Canada. The Divorce Act only applies to people who are married to each other or who used to be married to each other.

Family Law Act

The Family Law Act is a BC law that applies to married spouses, unmarried spouses, parents, and a child’s caregivers. Not all of the Family Law Act applies to all of these relationships.

  • The parts that talk about child support and the care of the child apply to everyone.
  • The parts that talk about spousal support apply only to married spouses and to unmarried spouses who claim spousal support within two years of the date they separate.
  • The parts that talk about dividing property and debt only apply to married spouses and to unmarried spouses who have lived together in a marriage-like relationship for at least two years.

This chart shows which law applies to whom and for what purpose:

Married Spouses Unmarried Spouses Parents Child's Caregivers
Divorce X
Custody (Divorce Act) X
Access (Divorce Act) X
Guardianship (Family Law Act) X X X X
Parental responsibilities and parenting time (Family Law Act) X X X X
Contact with a child (Family Law Act) X X X X
Child support (Divorce Act) X
Child support (Family Law Act) X X X X
Spousal support (Divorce Act) X
Spousal support (Family Law Act) X X
Property and debt (Family Law Act) X X
Protection orders (Family Law Act) X X X X

Resolving family law issues

Family law issues can be resolved in ways that don’t involve going to court. Options include:

  • Negotiation: Where the parties discuss the issues to try to reach an agreement.
  • Mediation: Where the parties meet with a neutral person (a mediator), who helps them find a solution they agree on.
  • Collaborative practice: A kind of negotiation where each party has their own lawyer and agree they will do everything possible to reach a settlement without going to court.
  • Arbitration: Where the parties hire an arbitrator to act as their personal judge to make decisions about their dispute they will be bound by.

For more on alternatives to court, see our information on mediation and collaborative practice (no. 111).

If parties can’t resolve their problems using these approaches, they may have to go to court to have a judge resolve their problems.

Going to court

There are two courts that deal with family law issues, Family Court and Supreme Court.

Family Court is a division of the BC Provincial Court. It doesn’t charge court filing fees and its rules and forms are simplified for people who use the court. Family Court can deal only with issues under the Family Law Act, such as guardianship, child care, child support, and spousal support. For more on this court, see our information on Family Court (no. 110).

Supreme Court rules are more complicated and the court charges fees to file certain documents and schedule certain hearings. But Supreme Court can deal with issues under both the Divorce Act and the Family Law Act. So Supreme Court can deal with all the same issues as Family Court, plus divorce and the division of property and debt.

Supreme Court Family Court
Family Law Act X X
Divorce Act X
Divorce X
Custody (Divorce Act) X
Guardianship (Family Law Act) X X
Access (Divorce Act) X X
Parental responsibilitis and parenting time (Family Law Act) X X
Contact with a child (Family Law Act) X X
Child support X X
Spousal support X X
Property and debt X
Protection orders X X

Key words and phrases in family law

Here are definitions of some key words and phrases used in family law.

Separation is the breakdown of a romantic relationship. Separation usually means a couple have moved out and are living apart from each other, but it is possible to be separated while continuing to live under the same roof. See our information on separation and separation agreements (no. 115) and deciding who will move out (no. 116).

Divorce is the legal end of a marriage by a court order. We explain the requirements for divorce in no. 120.

Child is any person under the age of 19, the age of majority in British Columbia. It may include an adult child for the purposes of child support. The Divorce Act uses the term “child of the marriage”.

Parent is someone who is the birth parent of a child, the adopted parent of a child, a parent by assisted reproduction, or, in some cases, a donor of eggs or sperm and a surrogate mother.

Several terms are involved when talking of who the children should live with and how decisions about their care will be made. Under the Divorce Act, this is called custody. Under the Family Law Act, this is called parenting arrangements, which includes guardianship, parental responsibilities, and parenting time.

Guardianship is the right of a parent (or a person appointed by the court) to care for a child and have parental responsibilities. Parental responsibilities are decisions about the upbringing and care of a child made by the child’s guardians. Parenting time is a guardian’s time with a child, usually fixed by a schedule.

The time a person who is not a guardian has with a child is called contact under Family Law Act and access under the Divorce Act.

For more on these concepts involving care of the children, see our information on custody, guardianship and parenting arrangements and contact (no. 142).

Child support is money paid by one parent to the other for the financial support of their child. We explain child support in no. 117.

Spousal support is money one spouse pays to the other to help with expenses. We explain spousal support in no. 123.

Get help

With more information

The wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC, provides comprehensive information on family law, including sample court forms and how-to information.

Web: wiki.clicklaw.bc.ca

The Legal Services Society's Family Law in BC website features self-help information for people in family disputes.

Web: [1]familylaw.lss.bc.ca


[updated October 2018]

The above was last reviewed for legal accuracy by Renée Aldana, South Coast Law Group.




Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence Dial-A-Law © People's Law School is licensed under a Creative Commons Attribution - NonCommercial - ShareAlike 4.0 International Licence.


Personal tools
Namespaces

Variants
Actions
Site
Tools
Contributors
Print/export