Introduction to Family Law in British Columbia
This section offers a short introduction to 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 Understanding the Legal System for Family Law Matters has a more complete introduction to family law and resolving family law disputes 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 caring for children after separation, child support, spousal support, sharing property and debts, separation and divorce, and family law agreements.
When people in a romantic relationship break 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 called divorce law or the law on domestic relations, is the area of the law that deals with problems like these. It is the area of law that talks about how family relationships with legal consequences are formed and what happens when they break up.
To understand how family law works in British Columbia, you need to have a basic understanding of the legal system, the law about family law problems, and how the courts apply the law when you can't agree about something. You don't always have go to court when there's a problem. Negotiation, mediation and arbitration are other ways that people can solve their problems without going to see a judge.
Family law problems are resolved in one of two ways:
- the adults involved bargain with each other and come up with a solution that they can both agree to, or
- they can't agree and they have to ask someone else to come up with a solution, usually by going to court or to an arbitrator.
Going to court means that one or both people have started or will start a court proceeding. (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, and arbitration is like going to a private court where you get to pick the judge.
There are two courts that handle almost all family law litigation in British Columbia: the Provincial (Family) Court and the Supreme Court. Each court has its own rules, its own forms, and its own processes.
There are two main laws that apply to family law problems. A law, in this sense of the word, means a collection of rules made by the government. (This kind of law is also called legislation or statute law. You've probably heard of legislation like the Criminal Code, the Landlord and Tenant Act and the Motor Vehicle Act.) The laws that apply to family law problems in British Columbia are the Divorce Act, a law made by the federal government, and the Family Law Act, a law made by the provincial government. Although these laws cover some of the same legal issues, each law also covers issues that the other doesn't. For some families, 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, or
- someone is threatening to hide, sell, or give away property or money.
If you don't have to deal with one or more of these issues, you can always try to negotiate a resolution to the things you disagree about, and find a settlement that you both agree with. People who need help negotiating sometimes hire someone else to help, someone who has special training and experience 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. If you can't reach a settlement no matter how hard you try, you might use an arbitrator. An arbitrator is someone who has special training and makes a judge-like decision, after listening carefully to each side, on the things you disagree about.
Lawyers who mediate family law problems are called family law mediators, and have training in mediation in addition to their training as lawyers. In the same way, lawyers who arbitrate family law problems are called family law arbitrators, and have additional training in arbitration. Because there are no rules about who can and who can't call themselves a mediator or an arbitrator, you should look carefully at the mediator's or arbitrator's credentials before you agree to use that person as your mediator or arbitrator.
Common family law problems
All sorts of people in all sorts of situations can have family law problems, including people who live together and people who don't, people who are married to each other and people who aren't, and people who intended to have a child together and people who didn't. In British Columbia, family law applies to people in same-sex relationships exactly the same way that it applies to people in opposite-sex relationships. Family law also applies to people when their family isn't a couple but includes more than two adults.
The sorts of problems adults 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 be responsible for which debt.
Family law problems about children usually involve making decisions about:
- parenting time, which includes deciding whether the children will live with one parent for most of the time or share their time between their parents,
- parental responsibilities or decision-making responsibility, which includes deciding how parents or guardians will make choices about important things in children's lives, like healthcare and education, and
- contact, which is about deciding how much time 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 usually involve making decisions about:
- Child support, which is money that is paid to help with the children's expenses, such as shelter, clothing, medical expenses, and food.
- Spousal support, which is money that is paid to help with a spouse's day-to-day living expenses, like rent, the phone bill and the electricity bill, and sometimes money that is paid to compensate a spouse for the financial impact of decisions about work and money that were made during the relationship.
When a family has 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 property, which generally means only the property that they accumulated during their relationship. Family property can include things like houses, bank accounts, businesses, and cars. It can also include RRSPs and pensions. Sometimes a family also has to decide who will take responsibility for debts. Generally, only the debts that accumulated during a relationship will be shared between spouses.
Married spouses also have to decide about whether they want to get divorced. A divorce is the legal ending 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 when there are other things to worry about, like children and property. People who aren't married, including unmarried spouses, don't need to get divorced.
All of these family law problems will be talked about in more detail later on.
As you can see, the sorts of family law problems a family might have depends on the nature of their relationship. In British Columbia, family law deals with four types of relationship:
- Unmarried couples. Unmarried adults are dating and probably think of themselves as boyfriends and girlfriends. They may have lived together, but not for too long. Unmarried couples involved in a family law problem may have been together for only a very short time... perhaps just long enough to make a baby.
- Unmarried spouses. Unmarried spouses are not legally married. Unmarried spouses have lived together in a loving relationship for at least two years. If they have a child while living together, they are unmarried spouses even if they've lived together for less than two years.
- Married spouses. Married spouses have been legally married by a marriage commissioner or a religious official licensed to perform marriages.
- Parents. Parents are people who have had a child together, sometimes including people who helped have the child as a donor of sperm, a donor of eggs, or as a surrogate mother. Parents may include unmarried couples, unmarried spouses, married spouses, or complete strangers. What matters is that they have had a child together.
Family law doesn't have much to do with unmarried couples unless they have had a child together.
- Children and Parenting after Separation
- Child Support
- Spousal Support
- Property and Debt in Family Law Matters
- Family Relationships, in particular the sections on Married Spouses and the Law on Marriage and Unmarried Spouses
Resolving family law problems
If you have a family law problem now, or might have one in the future, you have two ways to deal with that problem: you can talk to the other person and try to make a decision 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 usually 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 way of solving the problem, and your decision will usually be written down in a formal way. Reaching an agreement like this usually means that you have to negotiate — bargain — with each other. You can negotiate face to face, or do it through lawyers. Mediation is a kind of negotiation that uses a specially-trained person, a mediator, to help people talk to each other and find a settlement. Collaborative negotiation is a kind of negotiation that uses specially-trained lawyers, and sometimes also people who are experts about money or experts about children, who work together to help people find a settlement.
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 decide to litigate, you will be starting a public court proceeding that will wrap up a few years later with a trial before a judge, if your family problem isn't resolved by a settlement before then. If you decide to arbitrate, you will be starting a private process that will wrap up a few months later with a hearing before an arbitrator.
Court proceedings usually end with the judge's final order. Arbitration proceedings end with the arbitrator's final award. Negotiation usually ends with a settlement that is written down as a separation agreement or a parenting agreement, but if you negotiate and reach a deal in the middle of a court proceeding, the settlement might be written down as a consent order. If you negotiate a deal in the middle of an arbitration proceeding, the settlement will be written down as a consent award.
Orders, awards, and separation agreements resolve the family law problems that you have now. However, agreements can also be used to address family law problems that you might have in the future. Agreements like these are usually called marriage agreements (also known as prenuptial agreements or prenups) or cohabitation agreements (also known as living-together agreements).
- Resolving Family Law Problems out of Court
- Resolving Family Law Problems in Court
- Family Law Agreements
Family law agreements
A family law agreement is a legal contract, like the contract you might have with your landlord or your employer, or the contract you might sign if you lease a car. Family law agreements are used to record people's settlement of the legal issues that they're dealing with when they make the agreement, or any legal issues that might come up in the future.
There are three kinds of agreement people can make about family law issues:
- Cohabitation agreements or living-together agreements. These agreements are made when people are living together in a romantic relationship or plan to live together in a romantic relationship.
- Marriage agreements or prenuptial agreements. These are agreements that a couple may make if they are married or are going to be getting married.
- Separation agreements. These agreements are made by married spouses, unmarried spouses and unmarried couples after their relationships have ended. Separation agreements that address only some issues might be called parenting agreements, support agreements or property agreements.
Cohabitation agreements and marriage agreements are for people who are just starting, or have just started, 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 usually talk about what will happen if the relationship ends. These agreements are usually meant to stop people from fighting after their relationship ends by saying who will get what, right from the start.
The law does not require that people make a cohabitation agreement or a marriage agreement when they start to live together or get married. 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 just starting out, and expect to have a long-term relationship may not need or want an agreement at all.
Separation agreements are made after a relationship has ended. They talk about how people have agreed to deal with things like the care of children, child support and spousal support, and how the family property and debt will be shared. Separation agreements don't have to cover all the family law problems people have. They can deal with just some of those problems and leave the rest for the court or an arbitrator to decide.
Normally, people who are thinking about a separation agreement talk about their legal problems and try to negotiate a settlement that they are both happy with. It is unusual, and perhaps unfair, for just one person to write a separation agreement without talking to the other people involved.
The law does not require that people make a separation agreement when their relationship has ended.
No matter what kind of family law agreement you have signed, each of the people involved in the agreement expect that the others will follow the agreement, and that the court will enforce the agreement if someone doesn't follow it. The court will generally respect an agreement that people signed willingly, as long as the agreement was fair and no one misled anyone else about something important, like money or property.
The chapter on:
The courts of British Columbia
There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of 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 the people involved in a court case (the parties or the litigants) can't solve a legal problem for themselves, the court will make a decision resolving the problems for them, after hearing from witnesses and considering the other evidence presented at a formal trial. The Court of Appeal is an appeal 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 "Provincial Court.") The Provincial Court can only deal with:
- guardianship of children under the Family Law Act,
- parental responsibilities, parenting time, and contact under the Family Law Act,
- child support under the Family Law Act,
- spousal support under the Family Law Act, and
- orders protecting people.
The Supreme Court, on the other hand, can deal with all family law problems. As well as issues about , child support, and spousal support under the Family Law Act, this court can also deal with:
- decision-making responsibilities, parenting time, and contact under the Divorce Act,
- child support under the Divorce Act,
- spousal support under the Divorce Act,
- dividing family property and family debt,
- caring for children's property,
- orders protecting people, and
- orders protecting property.
The Supreme Court also hears 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 Guardianship and
Yes Yes Time with children Yes Yes Child support Yes Yes Children's property Yes Spousal support Yes Yes Family property and
Yes Orders protecting people Yes Yes Orders protecting property 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 Order. In the Supreme Court, the court form is called a Notice of Family Claim. These forms ask you to state the basic facts of the case and the sort of orders you think the court should make. The orders you want the court to make are called claims. (In the Provincial Court, a person who starts a court proceeding is called the applicant; in the Supreme Court, this person is the claimant.)
Once a court proceeding has started, the people against whom the proceeding has been brought can reply to the claims being made and make new claims of their own. In the Provincial Court, this court form is called a Reply, and the form includes parts for both replying to the claims being made and making new claims. In the Supreme Court, two court forms can be used: a Response to Family Claim, used to reply to the claims being made, and a Counterclaim, use to make new claims. (In the Provincial Court and in the Supreme Court, a person answering a court proceeding is called the respondent.)
Applicants and respondents (in the Provincial Court), and claimants and respondents (in the Supreme Court), are called the parties to a court proceeding.
After the respondent has filed a reply to the claims being made against them, any of the 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 party, an order that one party not harass another party, or an order that one party be able to use the family car.
There are two types of order: an interim order, which is any order made before trial; and, a final order, which is the order made at the end of a trial. A trial is the final hearing before a judge, where the parties present their arguments and their evidence, and finishes the court proceeding. Interim orders and final orders can also be made based on the agreement of the parties. These orders are called consent orders.
If you don't like the order you get from the judge after a trial, you can 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 — a consent order — without proof that you were somehow tricked or forced into agreeing to the order.
Over time, the terms of an order may need to be changed. If there has been an important 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 better suit the new circumstances. This is called applying to vary an order.
- Understanding the Legal System for Family Law Matters, in particular the section on The Court System for Family Matters
- Resolving Family Law Problems in Court, in particular the sections on Starting a Court Proceeding in a Family Matter, Responding to a Court Proceeding in a Family Matter, and Interim Applications in Family Matters
The basic law
There are two kinds of law: laws made by the governments (called legislation, statutes, acts, and regulations); and, laws made by the court. Laws made by the court are known as the common law, precedent decisions, or case 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. This section talks about the first kind of law, legislation.
Legislation is made by the federal government, the government of Canada, and the provincial government, the government of British Columbia. The two pieces of legislation that are the most important for family law in this province are the federal Divorce Act and the provincial Family Law Act. Each piece of legislation deals with 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 married people of the same sex. It talks about:
- decision-making responsibility,
- parenting time and contact with a child,
- child support, and
- spousal support.
The Family Law Act applies to married spouses, unmarried spouses, and parents, and to unmarried couples who are neither married spouses nor unmarried spouses. This includes people in same-sex relationships and in families that involve more than two adults. This law talks about:
- guardianship of children,
- parental responsibilities,
- parenting time and contact with children,
- child support,
- spousal support,
- dividing family property and family debt,
- caring for children's property,
- orders protecting people, 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 legislation deals with which issue:
Provincial Family Law Act Federal Divorce Act Divorce Yes Parenting children Guardianship and
Decision-making responsibility Time with children Yes Yes Child support Yes Yes Children's property Yes Spousal support Yes Yes Family property and
Yes Orders protecting people Yes Orders protecting property Yes
There are other pieces of legislation that deal with family law problems, including the Adoption Act (which talks about adoption), the Name Act (which talks about changing your name and your children's names), the Land Title Act (which has to do with land 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 are the Child Support Guidelines.
The Child Support Guidelines set out the rules about how much child support should be paid, according to both 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 Guidelines. The Guidelines also set out the rules about when child support can be paid in an amount different than what the tables say should be paid.
- Understanding the Legal System for Family Matters, in particular the section on The Law for Family Matters
- The Legislation on Family Law in Getting Started
- Child Support, in particular the section on Child Support Guidelines
There are three things that parents must decide when their relationship ends:
- where the children will live, including whether they will live mostly with one parent or split their time between their parents more evenly,
- how the parents will make decisions about important things in the children's lives, like where they will go to school or how they will be treated if they get sick, and
- how much time each parent will have with the children.
The Divorce Act talks about these issues in terms of decision-making responsibilities, parenting time and contact. Parenting time is the time the child spends with each parent. Contact is the time someone other than a parent, like a grandparent or another relative, has with a child. Decision-making responsibility is how the parents share the responsibility of making decisions on behalf of their child; these responsibilities can be shared by both parents or divided between parents such that one parent has responsibility for decisions about one part of their child's life, like education, while the other parent has responsibility for another issue, like health care.
The Family Law Act talks about these issues in very similar ways. It talks about guardianship and parental responsibilities (which is pretty much the same thing as decision-making responsibilities), parenting time (which is very close to the same thing the Divorce Act means by parenting time), and contact (which is exactly what the Divorce Act means by contact). People who are guardians, usually parents, have parental responsibilities and parenting time. Someone who isn't a guardian, which might include a parent who isn't a guardian, may have contact with a child.
- Children and Parenting after Separation, in particular the section on Basic Principles of Parenting after Separation
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 or mortgage.
Child support is not a fee a parent pays to see the children.
Child support has nothing to do with decision-making responsibility, guardianship or parental responsibilities. It has nothing to do with parenting time or contact. It has nothing to do with whether a parent is a good parent or a bad parent, or whether a parent sees the child all the time or never. A parent has a duty to pay child support just because they are a parent.
Child support is almost always paid on a monthly basis, in the amount required by the Child Support Guidelines. A parent's duty to pay child support does not end until the child turns 19, the age of majority of British Columbia. It can last longer than that if:
- the child has an illness or disability that prevents the child from earning a living and being independent of their parents,
- the child is going to university or college, or
- there is another very good reason why the child is unable to live independently from their parents.
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 parent is a stepparent to the children,
- the children's time is shared almost equally between the parents,
- one or more children live with each parent,
- the child is over the age of majority, or
- paying the amount required by the Guidelines would cause serious financial hardship to a parent.
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, special or extraordinary expenses are expenses like daycare and orthodontics — the big, important expenses that most but not all children have. Where the children have special or extraordinary expenses, their parents usually contribute to the cost of those expenses in proportion to their incomes. For example, if one parent earns $30,000 per year and the other earns $20,000, for a total family income of $50,000, then $30,000 represents 60% of the total and so that parent pays 60% of an extraordinary expense while the other would have to pay 40%.
- Child Support, in particular the section on the Child Support Guidelines
Spousal support is money paid by one spouse to another spouse, for one of three reasons. Spousal support may be paid to help a spouse meet their day-to-day living expenses if they can't afford to pay those expenses on their own, 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 cohabitation agreement, but more commonly in a separation agreement.
Spousal support is not automatically paid just because people are married or unmarried spouses. The spouse who wants support must show that they are entitled to it.
The decisions made by people 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 separation. Say, for example, the spouses decided that one of them should quit work and stay at home to raise the children and be a homemaker. While a decision like this can be very helpful for the family as a whole, the longer the spouse who stays at home remains out of the workforce, the more difficult it will be for them to return to work and get a job that pays as well as their old job. As well, by remaining out of the workforce, the spouse who stays at home loses all of the opportunities for raises and promotions the spouse would have had if they had stayed in their job. These are some of the economic consequences that might support a claim for spousal support.
The end of a relationship can also cause a spouse to need financial help. After people separate, the same amount of money they had during the relationship now has to pay for two rent bills, two electricity bills, and two grocery bills. When the family were together, however, their combined incomes only had to pay for one rent bill, one electricity bill, and one phone bill. If a spouse can't afford to pay their living expenses with the income available to them, they might be entitled to ask the other spouse to pay spousal support to help with those expenses.
Spousal support is usually paid every month in a set amount of money for a set amount of time, although support can be paid indefinitely or in one big lump-sum payment. The amount of spousal support that is paid usually works out to an amount that the person with more money can afford to pay, using the money left over after their basic living expenses have been paid.
The amount of spousal support that should be paid, and the length of time it should be paid for, is usually calculated using the The Spousal Support Advisory Guidelines. The Advisory Guidelines use two formulas — one for when a family 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:
- The Advisory Guidelines are not a law and there is no rule saying that the Advisory Guidelines formulas must be used. Despite this, lawyers and the courts use the Advisory Guidelines almost all the time when someone is entitled to receive spousal support.
- The Advisory Guidelines are only used when someone is proven to be entitled to receive support; if there is no entitlement, the Advisory Guidelines don't apply.
- The formulas the Advisory Guidelines describe are very complicated. In particular, the formulas that are used when a family has children cannot be done without using a computer program.
Only people who are married spouses or unmarried spouses can ask for spousal support. Married spouses must ask for spousal support within two years of their divorce. Unmarried spouses must ask for spousal support within two years of the date they separated.
- Spousal Support, in particular the section on The Spousal Support Advisory Guidelines
Dividing family property and family debt
If people are married or have lived together with each other in a romantic relationship for more than two years, each of them is usually entitled to share in the property that accumulated during the relationship, called family property, when their relationship ends. Some property, like the property a spouse had before the relationship, is excluded from the property the spouses share.
Family property is the property acquired by either or both spouses after they started living together or got married up to the date they separate. Family property includes:
- real estate and personal property, like cars and motorcycles,
- bank accounts, investments, RRSPs, and pensions,
- the interest a spouse has in a company, business, or partnership,
- debts owed to a spouse, and
- any increase in value of excluded property that happens during the relationship.
Each spouse is usually entitled to keep all of their excluded property. Excluded property includes:
- the property that was owned by a spouse on the date the spouses began to live together or the date they married, whichever is earlier,
- any gifts or inheritances received by a spouse during the relationship,
- certain kinds of court awards and insurance payments made to a spouse during the relationship, and
- new property bought using excluded property.
Each spouse is also usually responsible for half of the family debt when their relationship ends. Family debt includes:
- all debts incurred by either spouse during the relationship, and
- any debts incurred after separation as long as the debts were incurred to maintain family property.
Spouses have the right to a share of the family property and a duty to share in the family debt when they separate. However, it's important to know that separation doesn't only happen when someone moves out. Spouses can be separated while living together, as long as one of them has said that the relationship is over and then behaved as if the relationship is over, for example by not sleeping with their spouse, not eating meals with their spouse, or by not doing chores for their spouse.
Separation and divorce
Separation happens when one or more people in a relationship decide that the relationship is over and then acts like it's over. "Acting like it's over" might mean moving out, although this doesn't happen for every family. It does mean that the spouses stop sleeping together, stop sharing meals together, stop going out together and stop doing chores for each other.
You don't need the permission of your spouse to separate. You also don't need a legal document to separate, and you don't need to see a lawyer or a judge to separate; 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 marriage," and unmarried spouses never need to get divorced.
For a marriage to legally end, however, the spouses must divorce. This means that one or both spouses have to start a court proceeding and ask a judge to make an order saying that they are divorced. A married couple can be separated for many, many years but they will still be legally married if they haven't gotten a divorce order.
Sometimes married people don't get around to getting a divorce for a long time. 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, own 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:
- the spouses have separated and have stayed separated for more than one year,
- a spouse has had sex with someone other than their spouse, called adultery, or
- a spouse has been verbally, emotionally, or physically abusive to their spouse, which is what the Divorce Act means by cruelty.
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 married 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.
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 they are married to one another. As well, people in same-sex relationships have exactly the same rights as people in opposite-sex relationships.
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, including whether they do or do not have permanent residency in Canada.
There is no law that requires someone who is unhappy in a marriage to stay in their marriage. If someone wants to leave a relationship, they can, and they do not need the permission or agreement of their spouse, a family member, an elder or anyone else to leave their relationship.
In Canada, there is no requirement that either dowry or dower be paid when a couple marries or divorces. Even if a religion requires a payment like this, that religious duty is not legally binding in Canada.
If an arranged marriage is proposed, each of the parties to that proposed marriage must still agree to marry of their own free will. There is no law that allows someone to be forced to marry someone else. An agreement between relatives or elders 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. A sponsorship agreement is a contract that 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 still ask the court for an order that their spouse pay support to them.
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. It is also important to know that the decisions of religious tribunals about how a separated couple will share their property or parent their children may not be recognized in British Columbia. You should, however, speak to a family law lawyer to find out whether you must follow the decision of a religious tribunal.
- Information for newcomers to Canada in the section on Newcomers to Canada and Family Law
Resources and links
- Spousal Support Advisory Guidelines from the Department of Justice
- Canada child benefits calculator from the Canada Revenue Agency Child and Family Benefits Calculator] from the Government of Canada
- "Family Law Basics" video from JP Boyd
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 14 February 2020.|
|JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|