Introduction to Family Law (No. 114)
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What is family law?
Family law deals with family issues. Most of the time, these issues involve couples that have been in a married or unmarried relationship and have now separated. 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, 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.
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 script explains 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:
- Where will their child live? How will decisions about their care be made? How will the parents share the child’s time?
- Is the child entitled to ongoing financial support from a parent? If so, which parent should pay child support and what amount?
- 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?
Different rules for different relationships
Family law deals with all 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 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 2 years for claims about property, or for less than 2 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 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:
- Divorce Act: this federal law applies throughout Canada. The Divorce Act applies only to people who are married to each other or who used to be married to each other.
- Family Law Act: this BC law applies to married spouses, unmarried spouses, parents, and a child’s caregivers. Not all of the Family Law Act applies to all 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 2 years of the date they separate.
- The parts that talk about dividing property and debt apply only to married spouses and to unmarried spouses who have lived together in a marriage-like relationship for at least 2 years.
This chart shows which law applies to whom and for what purpose:
|Married Spouses||Unmarried Spouses||Parents||Child'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 issues
Family law issues 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
Two courts deal with family law issues, Family Court, a division of the Provincial Court, and the Supreme Court. Family Court doesn’t charge court filing fees and its rules and forms are simplified for people who use the court. 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 many family law issues that Family Court can’t:
- Family Court can deal only with issues under the Family Law Act, such as guardianship, child care, child support and spousal support.
- 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 between married spouses and unmarried spouses who have lived together in a marriage-like relationship for at least 2 years.
|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
You should read the following definitions of common words and phrases before reviewing the other scripts on family law.
- 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 family law issues are 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 BC. May include an adult child 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 a child.
- Child Support Guidelines: A federal regulation, in force throughout Canada except Quebec, that shows how to calculate child support; the guidelines apply to regular child support and special and extraordinary expenses.
- Collaborative Settlement Processes: A type of negotiation in which the parties and their lawyers sign an agreement to do everything they can to resolve family law issues without going to court, often with the help 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 Family Law Act.
- Court Case: A court proceeding between two or more people. Also called an action or lawsuit.
- Custody: a term used in the Divorce Act. It may refer to a parent’s right to have the child live in their home and to make decisions about the care of the child. It may exclude the other parent.
- Divorce: The legal end of a marriage by a court order.
- Divorce Act: A federal law that talks about divorce, custody of and access, 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 are excluded from family property and normally remain the property of the owning spouse. Excluded property is a term used in the Family Law Act.
- Family Debt: Debt incurred by either spouse 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 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 the child, 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 of a parent (or of a person appointed by the court as a guardian) to care for a child and usually have parenting responsibilities allocated to them. A person must be a guardian of a child to have 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. A person must also be a guardian to have parenting time with a child. A person who is not a guardian may have contact with a child. 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 ends with the abandonment of the court case 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 help 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 some cases, 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 must 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, the contents of the family home and any other asset.
- Protection Order: An order restricting a person’s behaviour to protect 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 while still living in the same home.
- 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 describing formulas used to calculate the spousal support payable, when a spouse is entitled to receive it, and how long it should be paid for.
- Spouse: A married spouse, under the Divorce Act and 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”, under 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 2 years. For spousal support claims, it includes people who have lived together for less than 2 years and have had a child together.
- The other Dial-A-Law scripts in this family law series
- Legal Services Society family law website
- JP Boyd on Family Law
[updated October 2018]
The above was last edited by John Blois.
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