Introduction to Family Law (No. 114)
|This page is under development and should not be relied upon.|
|Dial-A-Law features free information on the law in British Columbia in over 130 topic areas. A service of People's Law School, Dial-A-Law is available on Clicklaw Wikibooks, its own website at dialalaw.ca, and on the telephone at 1-800-565-5297.|
What is family law?
Family law is the area of the law that deals with family problems. Most of the time, these problems involve couples that have been in a married or unmarried relationship and have now separated. Family problems can also involve people who have never been in a long-term relationship, like a couple who never dated but have a child together, and people who have never been in a romantic relationship at all, like a grandparent who would like to have time with or care for a grandchild.
It's important to know that in British Columbia, 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 script provides an introduction to family law, the courts that deal with family law problems and the laws about family law problems. It ends with definitions for some common legal words and phrases used in family law.
Common family law problems
When a couple separates they have a lot of decisions to make:
- Where will the children live? How will decisions about their care be made? How will the parents share the children’s time?
- Are any of the children entitled to ongoing financial support from a parent? If so, which parent should pay child support and in what amount?
- Does a spouse need financial support from the other spouse? Can the other spouse afford to pay it, and if so, in what amount 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 divided? How will responsibility for debts be shared?
Different rules for different relationships
Family law deals with all of these decisions and more. However, not every couple needs to deal with all of these issues. The decisions a couple has to make and the law that applies changes depending on the type of relationship you’re in. Family law talks about 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 claims about property, or for less than two years if the couple has had a child together, for claims about spousal support. Unmarried spouses don’t require a divorce to end their legal relationship. Their relationship ends is over 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.
- Children’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:
- Divorce Act: The Divorce Act is a law of the government of Canada and 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 law of British Columbia and applies to married spouses, unmarried spouses, parents and children’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 children apply to everyone. The parts that talk about spousal support only apply to married spouses and all unmarried spouses. The parts that talk about dividing property and debt only apply to married spouses and to unmarried spouses who have lived together for at least two years.
This chart shows which law applies to whom and for what purpose:
|Married Spouses||Unmarried Spouses||Parents||Children's Caregivers|
|Custody (Divorce Act)||√|
|Access (Divorce Act)||√|
|Guardianship (Family Law Act)||√||√||√||√|
|Parental Responsibilities and Parenting Time (Family Law Act)||√||√||√||√|
|Contact with a Child (Family Law Act)||√||√||√||√|
|Child Support (Divorce Act)||√|
|Child Support (Family Law Act)||√||√||√|
|Spousal Support (Divorce Act)||√|
|Spousal Support (Family Law Act)||√||√|
|Property and Debt (Family Law Act)||√||√|
|Protection Orders (Family Law Act)||√||√||√||√|
Resolving family law problems
Family law problems can be resolved through negotiation, mediation, collaborative settlement processes and arbitration without going to court. If a couple can’t resolve these problems themselves, they may have to go to court to have a judge resolve their problems for them.
Going to court
There are two courts that deal with family law problems, Family Court, a division of the Provincial Court, and the Supreme Court. Family Court doesn’t charge court fees and its rules are simplified and easy to understand. The rules of the Supreme Court can be very complicated and the court charges fees to file certain documents and schedule certain hearings. However, the Supreme Court can deal with many family law problems that Family Court can’t:
- Family Court: Family Court can deal with issues about guardianship and the care of children, child support and spousal support. Family Court can only deal with issues under the Family Law Act.
- Supreme Court: The Supreme Court can deal with all of these issues as well as divorce and the division of property and debt between married spouses and unmarried spouses who have lived together for at least two years. The Supreme Court can deal with issues under both the Divorce Act and the Family Law Act.
|Supreme Court||Family Court|
|Family Law Act||√||√|
|Custody (Divorce Act)||√|
|Guardianship (Family Law Act)||√||√|
|Access (Divorce Act)||√||√|
|Parental Responsibilitis and Parenting Time (Family Law Act)||√||√|
|Contact with a Child (Family Law Act)||√||√|
|Property and Debt||√|
Family law words and phrases
Before you move on to the other scripts on family law, here are definitions of some common words and phrases used in these scripts.
- Access: A parent’s time with a child, usually fixed by a schedule. Access is a term used in the federal Divorce Act.
- Application: A formal request for a court order.
- Arbitration: A process in which a family law dispute is resolved by a neutral arbitrator after a formal hearing.
- Case Conference: An informal meeting with a judge to review the issues in a court case and explore options for settlement. In Family Court, a “Family Case Conference.” In the Supreme Court, a “Judicial Case Conference.”
- Child: Any person under the age of 19, the age of majority in British Columbia. May include adult children for the purposes of child support. The Divorce Act uses the term “child of the marriage.”
- Child Support: Money paid by one parent to the other for the financial support of their children.
- Child Support Guidelines: A federal regulation, in force throughout Canada except Quebec, that talks about how child support is calculated.
- Collaborative Settlement Processes: A kind of negotiation in which the parties and their lawyers sign an agreement to do everything they can to resolve a family law dispute without going to court, often with the assistance of counsellors, child psychologists and financial experts.
- Consent Order: An order that the parties to a court case agree the court should make.
- Contact with a Child: The time a person who is not a guardian has with a child, usually fixed by a schedule. Contact is a term used in the provincial Family Law Act.
- Court Case: A court proceeding between two or more people. Also called an “action” or a “lawsuit”.
- Custody: A parent’s right to have the child live in his or her home and to make decisions about the care of the child. Custody is a terms used in the Divorce Act.
- Divorce: The legal end of a marriage by a court order.
- Divorce Act: A federal law that talks about divorce, custody of and access to children, child support and spousal support.
- Excluded Property: Property owned by a spouse before the spouses began to live together or married, plus certain kinds of property received afterwards like gifts and inheritances, that is excluded from family property and normally remains the property of the owning spouse. Excluded property is a term used in the Family Law Act.
- Family Debt: Debt incurred by either or both spouses during their relationship, normally shared between both spouses. Family debt is a term used in the Family Law Act.
- Family Property: Property owned by one or both either or both spouses at the end of a relationship, normally shared between both spouses. Family property is a term used in the Family Law Act.
- Family Court: A division of the Provincial Court of British Columbia which deals with family law issues under the Family Law Act.
- Family Justice Counsellor: A Family Court staff member trained in mediation and available to help with issues about the care and control of children, child support and spousal support.
- Family Law Act: A provincial law that talks about guardianship, parenting arrangements, contact with a child, child support, spousal support and the division of property and debt.
- Guardianship: The right to make parenting decisions for a child and the right to get information from and give instructions to the important people involved in a child’s life, such as teachers, doctors, counsellors and coaches. Guardianship is a term used in the Family Law Act.
- Hearing: A formal meeting with a judge for a conference, to argue an application or for a trial.
- Interim Application: An application for an interim order.
- Interim Order: An order made after a court case has begun but before it has ended by a trial or a settlement. Interim orders are temporary and last until they are changed by another interim order or until trial or settlement.
- Litigation: A process for resolving a dispute through the court system, which starts with service of the court forms stating the court case and describing the legal claims and concludes with the abandonment of the court by the person who started it, a settlement or a trial.
- Married Spouse: Someone who has been legally married to someone else.
- Mediation: A voluntary, formal bargaining process in which the parties try to resolve a family law dispute with the assistance of a neutral mediator.
- Negotiation: A voluntary, informal process in which the parties try to resolve a family law dispute by bargaining with each other.
- Order: The mandatory direction of a judge.
- Parent: Someone who is the natural parent of a child, the adopted parent of a child a parent by assisted reproduction, or, in certain circumstances, a donor of eggs or sperm and a surrogate mother.
- Parental Responsibilities: Decisions about the upbringing and care of a child made by the child’s guardians. Parental responsibilities is a term used in the Family Law Act.
- Parenting Arrangements: The arrangements made in an order or agreement for parental responsibilities and parenting time. Parenting arrangements is a term used in the Family Law Act.
- Parenting Time: A guardian’s time with a child, usually fixed by a schedule. Parenting time is a term used in the Family Law Act.
- Payor: Someone who is obliged to pay child support or spousal support to someone else, the “recipient,” as a result of a court order or an agreement.
- Property: Anything that has value, such as a house, a bank account, a company, clothing, the contents of the family home and any other asset.
- Protection Order: An order restricting a person's behaviour for the protection of someone else. Protection order is a term used in the Family Law Act.
- Separation: The breakdown of a romantic relationship. Separation usually means that a couple have moved out and are living apart from each other, but it is possible to be separated and while continuing to live under the same roof.
- Separation Agreement: A written agreement recording a settlement of some or all of the issues in a family law dispute.
- Settlement: The resolution of a legal dispute on terms agreed to by the parties. May be recorded in a written agreement or in a consent order.
- Spousal Support: Money paid by one spouse to the other, the "recipient", to help pay for that spouse’s living expenses.
- Spousal Support Advisory Guidelines: An academic paper which describes mathematical formulas that can be used to calculate the amount of spousal support payable, when a spouse is entitled to receive it, and the length of time it should be paid for.
- Spouse: A married spouse, under the Divorce Act the Family Law Act, or an unmarried spouse, under the Family Law Act.
- Stepparent: Someone who is the spouse of a parent.
- Supreme Court: British Columbia’s superior court which deals with family law issues under the common law, the Family Relations Act and the Divorce Act.
- Recipient: Someone who is entitled to receive child support or spousal support from someone else, the “payor,” as a result of a court order or written agreement.
- Trial: The resolution of a court case by presenting evidence and argument to a judge.
- Unmarried Spouse: A person who has lived with someone else in a marriage-like relationship for at least two years. For the purpose of claims for spousal support, includes people who have lived together for less than two years and have had a child together.
- See other Dial-A-Law scripts in this family series for more detail.
- See also the wikibook JP Boyd on Family Law, from Courthouse Libraries BC, which provides comprehensive information about family law, including links to the rules of court and court forms, at JP Boyd on Family Law.
- Check the Family Law Act available at www.bclaws.ca.
- Also check the Divorce Act at http://laws-lois.justice.gc.ca.
Dial-A-Law© is a library of legal information available by:
- phone, as recorded scripts, and
- audio and text, on the CBA BC Branch website.
To access Dial-A-Law, call 604.687.4680 in the lower mainland or 1.800.565.5297 elsewhere in BC. Dial-A-Law is available online at www.dialalaw.org.
The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. Dial-A-Law is funded by the Law Foundation of British Columbia and sponsored by the Canadian Bar Association, British Columbia Branch.
© Copyright 1983-2014 The Canadian Bar Association, British Columbia Branch
In 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."
Money 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.
Under 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."
In family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property."
Something which can be owned. See "chattels" and "real property."
The 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."
In family law, the quality of an unmarried couple's relationship that demonstrates their commitment to each other, their perception of themselves as a couple, and their willingness to sacrifice individual advantages for the advantage of themselves as a couple; a legal requirement for a couple to be considered spouses without marrying. See "cohabitation," "marriage," and "spouse."
A payment made by one spouse, the payor, to the other spouse, the recipient, to help with their day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.
In 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."
A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."
An act; a statute; a written law made by a government. See "regulations."
A 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.
In 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."
A 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."
(AKA collaborative process) A dispute resolution process in which the parties to a legal dispute and their lawyers agree that they will make every effort to resolve the dispute through cooperative, transparent negotiations, with the assistance of counsellors and neutral experts in financial issues and children's issues as necessary, without going to court. See "alternative dispute resolution."
A 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."
A 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.
A 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 family court proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or matters under the Divorce Act. See "judge" and "jurisdiction."
Normally 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."
A 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."
In 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."
In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order," and "spousal support."
A 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."
The age at which a child becomes a legal adult with the full capacity to act on their own, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority. See "disability" and "infant."
A 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."
A regulation to the federal Divorce Act, adopted by every province and territory except Quebec, that sets the amount of child support a parent or guardian must pay, usually based on the person's income and the number of children involved.
A 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.
A court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order.
In 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."
Under 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 amount of time with the child. See "custody."
A 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."
A term under the Family Law Act which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities," and "parenting time."
A 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."
In law, the directions given by a client to their lawyer about either the conduct of their affairs or a court proceeding.
The 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."
Any 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."
A biological or birth parent of a child, as opposed to an adoptive parent or a stepparent. See "adoptive parent" and "stepparent."
A person who gives something as a gift or as a bequest, freely and without expectation of payment in return.
A 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."
A 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."
A 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."
In law, a lawyer's bill to their client or a statement; one person's recollection of events.
An order resolving all or part of a court proceeding, on an interim or final basis, that the parties agree the court should make.
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, but is nonetheless very useful.
A person who is validly married to another person as a result of a ceremony presided over by someone with the authority to conduct marriages. See "marriage" and "unmarried spouse."
Someone who is a spouse by the operation of a statute. Under the Family Law Act, unmarried spouses are people who have lived together in a marriage-like relationship for at least two years, or, for all purposes of the act other than the division of property or debt, who have lived together for less than two years but have had a child together. See "marriage-like relationship," "marriage," and "married spouse."
The 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.
Facts 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."
In law, an attempt to persuade by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence, or to a written summary of argument.
The guidelines governing the court process and the conduct of litigation generally. Each court has its own rules of court.