Difference between revisions of "Introduction to Family Law in British Columbia"

}}This section offers a short introduction to the principles of 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 [[Introduction to the Legal System for Family Matters|The Legal System]] has a more complete introduction to family law and dispute resolution processes 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 the care of children, child support, spousal support, the division of property and debt, separation and divorce, and family law agreements.

To understand how family law works in British Columbia, you need to have a basic understanding of the legal system, the laws about family law problems, and how the courts apply those laws when a couple can't agree about something. Since it isn't always necessary to go to court when there's a problem, you also need to know about negotiation and mediation. These are the most common ways that people solve their problems without the help of a judge.

#the couple can't agree and they have to ask someone else to come up with a solution, usually by going to court.  

Going to court means that one or both people have 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.

There are two main laws that apply to family law problems. A law, in this sense of the word, means a rule made by the government. These laws are the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]''. Each law deals with different issues, although they share a lot of issues in common. For some couples, both laws <span class="noglossary">will</span> apply; for others, only one of these laws <span class="noglossary">will</span> apply, probably the ''[[Family Law Act]]''.

*there is a risk of violence,

*someone is threatening to hide property or money, or

*you just can't agree about how to solve the problem no matter how hard you try.

If you don't have to deal with one or more of these issues, you can always try to negotiate a way of fixing the problem, to find a solution that you both agree with. Couples who need help negotiating sometimes hire someone else to help, someone who has special training 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.

Lawyers who mediate family law problems are called ''family law mediators'', and have additional training in mediation apart from their training as lawyers. Because there are no rules about who can and who can't call themselves a mediator, you should look carefully at a mediator's credentials before you agree to use that person as your mediator.

All sorts of people in all sorts of situations can have family law problems, including couples who live together and couples who don't, couples who are married and couples who aren't, and couples who intended to have a child together and couples who didn't. In British Columbia, family law applies to same sex couples in exactly the same way that it applies to opposite-sex couples. The sorts of problems a couple can have when their relationship ends include deciding how the children <span class="noglossary">will</span> be cared for, whether support should be paid, and who <span class="noglossary">will</span> keep which property and which debt.

*''parenting time'', ''contact'' or ''access'', which are about deciding how much time each parent and other people <span class="noglossary">will</span> have with the children.

*''spousal support'', money that is paid to help with a spouse's day-to-day living expenses, like rent, the phone bill and the hydro <span class="noglossary">bill</span>, and sometimes money that is paid to compensate a spouse for effect of economic decisions made during the relationship.

When a couple have property, sometimes including when only one person has property, they have to decide if and how that property <span class="noglossary">will</span> be shared between them. In family law, the property married spouses and unmarried spouses share is called ''family property'', generally only the property that accumulated during a relationship. Family property can include things like houses, bank accounts, and cars. It can also include RRSPs and pensions. Sometimes a couple also has to decide who <span class="noglossary">will</span> take responsibility for debts. Generally, only the debts that accumulated during a relationship <span class="noglossary">will</span> be shared between married spouses and unmarried spouses.

Married spouses also have to decide about whether they want to get divorced. Divorce is the legal termination 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. Couples who aren't married, including unmarried spouses, never need to get divorced.

#'''Unmarried couples.''' An unmarried couple probably think of themselves as boyfriend and girlfriend. They may have lived together, but not for too long. Sometimes an unmarried couple involved in a family law problem <span class="noglossary">will</span> have been together only for a very short while ― 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, and, for most purposes of the ''[[Family Law Act]]'', must have lived together for at least two years or for less than two years if the couple have had a child together.

#'''Parents.''' Parents are people who have had a baby together, sometimes including people who helped as the donor of sperm, the donor of eggs or a surrogate mother. Parents may be an unmarried couple, unmarried spouses, married spouses or complete strangers. What matters is that they have a child.   

If you have a family problem now, or might have one in the future, you have two ways to resolve that problem: you can talk to the other person and try 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 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 resolution and your decision will usually be written down in a formal agreement. Reaching an agreement usually requires negotiation. You can negotiate face to face, or do it through lawyers. ''Mediation'' is a kind of negotiation that uses a specially-trained mediator to help people talk to each other and find a resolution. ''Collaborative settlement processes'' are a kind of negotiation that uses specially-trained lawyers, and sometimes people who are experts about money or experts about children, who work together to help people talk to each other.  

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 ''litigate'', you will start a public court proceeding governed by the formal rules of court that will conclude months or years later with a trial before a judge, if your family problem isn't resolved before then. If you ''arbitrate'', you will start a private proceeding governed by rules you can help design that will conclude months later with a hearing before an arbitrator.  

Court proceedings usually end with the judge's ''order''. Arbitration proceedings end with the arbitrator's ''award''. Negotiation usually ends with a settlement that is written down as an ''agreement'', but if you can negotiate 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 might be written as a ''consent award''. Orders, awards and agreements are for family law problems that you have now. Agreements are also used for family law problems that you might have in the future.  

A family law agreement is a 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 a couple's agreement on legal issues that they're dealing with when they make the agreement, or may have to deal with at some point in the future.  

There are three kinds of agreement a couple can make about family law issues:

#living-togther or cohabitation agreements, agreements that a couple may make when they are living together or plan to live together,

#marriage agreements, which a couple may want if they are going to be getting married, and

#separation agreements, which a married or unmarried couple may make after their relationship ends.

''Cohabitation agreement''s and ''marriage agreements'' are for couples who are just starting a relationship. These sorts of agreements can talk about how the relationship <span class="noglossary">will</span> be managed (who <span class="noglossary">will</span> pay the bills, <span class="noglossary">will</span> there be a joint bank <span class="noglossary">account</span> or a joint credit card, or who <span class="noglossary">will</span> do what parts of the housework), but most often talk about what <span class="noglossary">will</span> happen if the relationship ends. These agreements are usually meant to stop a couple from fighting after a relationship ends by setting out who <span class="noglossary">will</span> get what right from the start.

''The law does not require that a couple make a cohabitation agreement or a marriage agreement when they start to live together or marry. 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 expect to have a long-term relationship may not need an agreement.

''Separation agreements'' are made after a relationship has ended. They talk about how a couple has agreed to deal with things like the care of children, child support and spousal support, and how the family assets <span class="noglossary">will</span> be shared. Separation agreements don't have to cover all the family law problems a couple have. They can deal with just some of those problems and leave the rest for the court to decide.

Normally a couple who are thinking about a separation agreement talk about the issues and try to negotiate a resolution that they are both happy with. It is unusual for just one person to write a separation agreement without talking to the other person. ''You do not have to sign a separation agreement if you don't want to.''

No matter what kind of family law agreement you have signed, you both expect that each of you <span class="noglossary">will</span> follow the agreement, and that the court <span class="noglossary">will</span> enforce the agreement if you don't follow it. The court <span class="noglossary">will</span> generally respect an agreement that a couple willingly signed, as long as the agreement was fair and neither person misled the other person about something important, like money or property.

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 litigants can't solve a legal problem for themselves, the court can make decisions resolving those problems 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.