Learning about Family Law

From Clicklaw Wikibooks

Family law is the area of law that deals with marriage, relationship breakdown and children. The two laws in BC that you may need to know about are:

  • Family Law Act: This is a provincial law that applies to all married and common-law couples.
  • Divorce Act: This is a federal law that applies to married spouses only.

Rights and responsibilities[edit]

Marriage and marriage-like relationships[edit]

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When you are married to someone, the law says you are a spouse. As a spouse, you have legal rights and responsibilities about caring for children and caring for each other. You are also considered a spouse under the law in two other types of relationships. The three kinds of living arrangements in which you can be a spouse are:

  1. People who are married. To be legally married, you must have a religious or civil marriage ceremony. After that, you stay married until one partner dies or until the marriage is legally ended by a divorce.
  2. People who are not married but have lived together in a marriage-like relationship for two years or more. Many people call a marriage-like relationship a “common-law” relationship. It is not illegal to live in a common-law relationship while you or the other person is still legally married to someone else. A common-law relationship ends when you begin to live apart. No matter how long you live together in a common-law relationship, you are not married under the law.
  3. People who are not married but have lived in a marriage-like relationship for less than two years and have a child together. If you have a child together you have a responsibility to support that child. One parent may also be responsible for the support of the other parent.

Getting separated[edit]

Every year in BC, thousands of married and common-law couples stop living together. This is called separation.

There is no such thing as a “legal separation.” If you’re married or in a common-law relationship, you become separated as soon as you and your spouse start living apart from each other with the intention of separating.

You don’t have to see a lawyer or go to court to be separated.

You might still live in the same house to save money, but you are usually considered separated if you don’t share things like meals, a bedroom, and social activities. You don’t need your spouse’s permission to separate.

Getting divorced[edit]

For couples who have been legally married, divorce is the only way to legally end the marriage.

You apply for a divorce by filling out documents and filing them with the BC Supreme Court. You don’t need your spouse’s permission to apply for a divorce.

The only legal reason for divorce is "marriage breakdown."

You can apply for a divorce saying you have "marriage breakdown" if:

  • you or your spouse have lived separately for one year,
  • you or your spouse has committed adultery, or
  • you were treated by your spouse with physical or mental cruelty.

You can apply for a divorce in BC even if you were married in another country. You will require proof that you were legally married, and that you or your spouse lived in BC for the 12 months before you apply for divorce.

Canada recognizes the following as proof of marriage from other countries:

  • marriage certificate,
  • marriage registration, or
  • certified copies of marriage documents.

Some cultures have their own divorce ceremony, but you are not legally divorced in Canada unless you have a court order for divorce from Canada or another country.

If you and your spouse agree to get a divorce, the judge reviews the documents you filed with the court.

If you have children, the judge will want to see how you have both agreed to care for them and support them.

Making an agreement[edit]

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An agreement is a written contract that describes a couple’s decisions about the legal issues in their relationship.

Couples can make agreements at any time:

  • before they move in together,
  • while they’re living together, or
  • when they separate.

An agreement you make before you move in together or while you’re living together includes your decisions about:

  • who owns what,
  • how much money each of you will put in to run the household,
  • if you will have a joint household credit card or separate individual credit cards,
  • how you will use and look after the things you buy together, and
  • who will pay debts.

An agreement you make when you separate includes your decisions about parenting, support and property. For example, it describes:

  • who the children will live with,
  • how parents will spend time with the children,
  • how parents will support the children,
  • who will stay in the home or apartment, and
  • how you will divide the things you own.

You and your spouse can make an agreement with each other about these decisions. Or you can go to court and ask the court to decide what should happen.

It’s best if you can settle your family law issues without going to court. Making an agreement saves time, money, and stress. It allows you to keep control of important decisions that affect your family.

Couples can often agree by talking together. But when you are separating you may find it difficult to agree. You can get help to come to an agreement.

Mediation[edit]

Mediation is a process where you and the other person ask someone who has special training to listen to what both of you have to say, and help you come to an agreement. The person with this special training is called a mediator.

A mediator can help you and your spouse work together to solve problems.

  • A mediator encourages you and your spouse to listen to each other and helps you come up with ideas for resolving your issues.
  • A mediator does not take sides or force solutions on you. A mediator does not make any of the decisions. You and your spouse make the decisions.
  • Through the mediation process, you can find solutions that are acceptable to both of you.

If you have children, the mediator will help you reach an agreement that is in their best interests.

To find a mediator, contact:

Mediate BC Society (Family Mediation Services)
Phone: 1-604-684-1300 local 23
Toll-free: 1-855-660-8406
fms@mediatebc.com
www.mediatebc.com

Family justice counsellors[edit]

Couples can get help from family justice counsellors. Family justice counsellors are government employees who work at Family Justice Centres across the province. Sometimes they are located in the local courthouse.

Family Justice Centers provide free services for families and couples with low incomes. They can help you and the other parent reach an agreement.

To contact a family justice counsellor, call Service BC:

Service BC Contact Centre
Vancouver: 604-660-2421
Victoria: 250-387-6121
Toll-free: 1-800-663-7867

Collaborative family law[edit]

Couples can agree to work together with lawyers who practise collaborative family law to find solutions that work for both spouses.

In collaborative family law, you and your spouse each have a lawyer. You and the lawyers participate in a series of meetings to try to come to an agreement.

To find a collaborative family law lawyer through the Lawyer Referral Service, see the Find Out More section.

Finalizing your agreement[edit]

When you come to an agreement, you write down what you’ve agreed to and both of you sign it.

Do not sign any agreement if you feel any pressure to do so. If your agreement deals with property, you must have your signatures witnessed by at least one other person.

To have your signature witnessed, ask a third person to:

  • watch you sign the agreement, and
  • also sign the agreement.

It’s also a good idea for both of you to get legal advice about what goes into your agreement and how it’s written.

To protect your legal rights and those of your children, you should each see a different lawyer.

You also need to see a lawyer if you’ve already signed an agreement and have questions about it.

To find a family law lawyer through the Lawyer Referral Service, see the Find Out More section.

Care and decisions for children[edit]

The BC Family Law Act changed in 2013. The law uses new terms to describe how parents care for and make decisions for children:

  • guardians & guardianship,
  • parental responsibilities,
  • parenting time, and
  • parenting arrangements.

This section looks at what these terms mean in BC.

Guardians and guardianship[edit]

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Parents are guardians. They have guardianship of their children. This means they are responsible for caring for and making decisions for their children. Parents who live together after their child’s birth are both the child’s guardians.

If the parents separate, they are both the child’s guardians, unless an agreement or court order removes one of them as a guardian.

If a parent never lived with the child, then that parent is not a guardian unless he or she:

  • regularly cares for the child, or
  • is appointed as a guardian by a court order or agreement with the child’s other guardian(s).

People other than parents can sometimes be guardians, but they must have a court order naming them as guardians.

A guardian may name someone to be a stand-by guardian just in case he or she becomes unable to look after the child. A guardian may also name someone who will become the child’s guardian if the guardian dies.

Parental responsibilities[edit]

Parents have parental responsibilities. These include making decisions about day-to-day care, as well as larger decisions about:

  • health care,
  • education,
  • religious upbringing,
  • extracurricular activities, and
  • where the child lives.

When parents live together, they share these responsibilities as guardians. Parents need an agreement or court order if they want to change this arrangement.

Parents who separate may continue to share parental responsibilities as guardians. Or one guardian may take on one or more of the parental responsibilities.

Guardians consult with each other when making decisions, unless their agreement or court order says that only one of them is responsible for that particular decision.

Parenting time[edit]

If one of the guardians no longer lives with the children, that guardian has parenting time with the children.

Parenting arrangements[edit]

The arrangements between guardians for sharing parental responsibilities and parenting time are called parenting arrangements. Parenting arrangements can be recorded in an agreement or a court order.

For example: When Susan and Joseph separated they made a written agreement that describes their parenting arrangements:
  • The children will live with Susan during the week. She will make the decisions about the children’s daily care when the children are with her.
  • The children will have parenting time with Joseph every weekend. He will make the decisions about the children’s daily care when the children are with him.
  • Susan and Joseph will continue to consult with each other about the larger decisions such as the children’s education and health care.

Contact with the child[edit]

Contact with the child is another important new term in family law. Contact with the child refers to the time that a person who is not a guardian spends with the child. A parent who is not the child’s guardian would have contact.

Grandparents, step-parents, and other people who may be important to the child can also apply to court to get contact with a child. The law recognizes that the child has a right to maintain these important relationships when parents separate.

People who are not guardians don’t have parental responsibilities, so they can’t make decisions about the child’s life, even during contact.

All guardians and the person with contact can agree to the contact, or the contact may be given in a court order. In some cases, there may be conditions on contact, such as having someone else supervise visits with the child.

Important Note: If you get a divorce, you will find that some different words are used. The federal Divorce Act uses the word “custody” to describe daily care of the child and decision-making for the child. It uses the word “access” to describe contact with the child.

Child's best interests[edit]

All decisions about parenting arrangements and contact in court orders or agreements must be based on the child’s best interests. These include:

  • what the child wants and needs,
  • who cared for the child in the past,
  • whether there is a history of family violence, and
  • what the parents are capable of (each one’s ability to carry out his or her responsibilities for the child).

When you are deciding your parenting arrangements after a separation, the law says you must only consider the best interests of the child. If you go to court, the judge can only consider the best interests of the child in making decisions about parenting.

Children's property[edit]

A child’s guardian is not automatically the guardian of the child’s property (including money). Guardians can manage children's property if it is a certain type of property or below a certain value. If not, a trustee is responsible for managing the child’s property. This is complicated. You would need to talk to a lawyer.

To find a family law lawyer through the Lawyer Referral Service, see the Find Out More section.

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Child support[edit]

The money one parent pays to the other parent to help provide for the child’s daily needs is called child support. Each parent has a legal responsibility to support the child, until the child is at least 19.

Parents have a legal duty to support their children. Even if you have never lived with your child’s other parent, you have a legal responsibility to contribute to the support of your child.

If a man who has been named as the child’s father denies being the parent of the child, the court can order him to take a paternity test, also called a parentage test.

Stepparents and guardians who are not parents also have a duty to support the child. Parents have the primary responsibility to pay child support, then non-parent guardians, and then stepparents.

A child should benefit[edit]

The laws about child support are based on the idea that a child should benefit from both parents' ability to support him or her.

If a child is living with one parent, the other parent usually must pay support money. Even if a child spends equal or almost equal time with both parents, the parent with the higher income may have to pay child support to the other parent.

Child support, although paid to the other parent, is the legal right of the child. A parent cannot make an agreement saying that the other parent does not have to pay child support.

One parent cannot prevent the other parent from having contact with the child because he or she is not paying child support payments.

Child Support Guidelines[edit]

Parents must follow rules called the Child Support Guidelines. The guidelines help set a fair amount of support for children. The Child Support Guidelines are based on the income of the parent who must pay support.

The Child Support Guidelines considers such things as how much money the parent makes and how many children need support. The guidelines make sure that children continue to benefit from the financial means of both parents.

If you and the other parent cannot agree about child support amounts, a mediator can help you. To find a mediator, see the Find Out More section.

While parents must follow the Child Support Guidelines, the rules are different for stepparents. They pay a child support amount based on:

  • the length of time the child lived with the stepparent, and
  • what the child’s living standard was while living with the stepparent.

What if a parent refuses to pay child support?[edit]

The provincial government has a free program called the Family Maintenance Enforcement Program.

The people who work in this program can help if a parent is not paying the money the judge said must be paid to support the children, or the money that he or she agreed in writing to pay.

If a parent does not pay child support, the Family Maintenance Enforcement Program may take the money directly from the parent’s pay cheque or bank account. Other things that may happen if a parent refuses to pay include:

  • He or she may lose his or her driver’s licence.
  • The Canadian government may take away his or her passport.

Spousal support and property[edit]

Spousal support[edit]

One spouse may need to ask the other for spousal support when they separate. The purpose of spousal support is to help with living expenses upon separation. Spousal support is usually paid for a limited period of time.

Spouses may make an agreement about spousal support. Or the spouse who wants support can apply to the court.

You must apply for spousal support within two years after you got an order for a divorce. If you were living in a common-law relationship, you must apply within two years of the date on which you separated.

If you are applying for spousal support, the court will consider:

  • If you worked outside the home during the marriage or relationship.
  • How long you and your spouse lived together.
  • If you are able to support yourself.
  • If you are or were at home with the children.
  • Whether you earn a lot less than your spouse.
  • If your spouse has the ability to pay.

What if a spouse refuses to pay spousal support?[edit]

The provincial government has a free program called the Family Maintenance Enforcement Program.

The people who work in this program can help if a spouse is not paying the money the judge said must be paid to support a spouse, or the money that he or she agreed in writing to pay.

Dividing family property[edit]

The Family Law Act deals with the division of property and debt when a couple separates. This law applies to people who are spouses — that is, to married couples and to people in a common-law relationship of two years or more.

When their relationship ends, spouses are presumed to keep property they brought into the relationship and to share in property they acquired during their relationship.

Unless you and the other spouse have an agreement that says something else, the presumption is that all family property and family debt is divided equally.

All property owned by either or both spouses at the date of separation is considered family property unless it is "excluded property" (explained shortly). Family property can include such things as:

  • the family home,
  • RRSPs,
  • investments,
  • bank accounts,
  • insurance policies,
  • pensions, and
  • an interest in a business.

Family debts are debts you take on during your relationship that:

  • you still owe on the date you separate, or
  • you take on after your separation date to maintain family property.

Some property is "excluded property"[edit]

Some things are not family property. They are excluded from the rule that the property must be divided equally. For example, these things are excluded:

  • Property one spouse owned before the relationship started.
  • Gifts and inheritances given to one spouse during the relationship.
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But if the value of excluded property increased during the relationship, that increase in value is family property. For example, suppose you owned the house when your spouse moved in. When you separated, the value of the house had increased 100%. Your spouse would be entitled to half of that increased value.

You may need a lawyer’s help to figure out what is family property or debt. To find a family law lawyer, see the Find Out More section.

There are exceptions to the equal division rule[edit]

A court can order that family property and debt be divided unequally if it would be significantly unfair to divide it equally. In considering whether an equal division would be significantly unfair, a court will look at factors such as:

  • the length of the spouses’ relationship,
  • whether the debt was incurred in the normal course of the spouses’ relationship,
  • if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt,
  • whether a spouse, after separation, caused a significant increase or decrease in the value of debt or property, and
  • whether a spouse may have to pay taxes as a result of a transfer of property.

If you think the arrangements about property and debt are unfair, you can go to court and ask a judge to divide family property or debt.

  • If you were married, you must apply to the court to do this within two years after you got an order for divorce.
  • If you were living in a common-law relationship of two years or more, you must apply to the court within two years of the date on which you separated.

People who are separating may want to know what happens to things such as pensions and medical and dental plans. You can find this information in the Legal Services Society publication, Living Together or Living Apart.

Moving with a child[edit]

The law in BC says that a guardian who wants to relocate with a child must give 60 days’ notice to any other guardian and to people who have contact with the child. This is because the move would affect the child’s relationship with them.

If there are disagreements about the move, the law says that you must make your best efforts to work out the disagreement. If you cannot agree, you have to go to court and the judge will decide whether or not a guardian can move with a child.

If you want to move, it’s wise to discuss your plans ahead of time with the other parent and anyone else who is a guardian or who has contact with the child. You may also want to talk to a lawyer to get advice about how likely it is that a judge might say you cannot move.

Parents can get help[edit]

Parenting After Separation program[edit]

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Separation is difficult. The lives of all family members are changing. When parents are separating, they are often upset and angry. They may argue and say a lot of angry and hurtful things to each other. Their children also feel upset.

For example: Kwan and Mi Hi were married and they had one child. After several years, Mi Hi became unhappy and dissatisfied with the marriage. She wanted to separate from Kwan. Kwan was hurt and angry. He didn’t understand why Mi Hi was unhappy. They had many arguments. Kwan didn’t want to separate.
Both Kwan and Mi Hi were worried about their daughter. How could they talk to her about their marriage break-up?

Parenting After Separation is a provincial government program that offers free sessions in many BC communities. This is a three-hour workshop about how to solve problems with the other parent.

At the workshop, a trained facilitator will present information about separation, including:

  • the impact of separation on you and your children,
  • how to help your family adjust to change, ways for you and your children’s other parent to communicate,
  • how to keep your children out of the middle of conflict,
  • options for resolving family disputes, including mediation, counselling and the court process,
  • how the child support guidelines work, and
  • resources in your local community for parents and children.

In most BC Provincial Court locations, you must attend a Parenting After Separation session before you can get a court order. You will not be asked to attend the same session as your spouse. Parents in smaller communities can take the Parenting After Separation course online.

Even if you don’t have to go to a Parenting After Separation workshop, you can attend the course.

Phone Service BC to find out about Parenting After Separation workshops in your area.

Service BC Contact Centre
Vancouver: 604-660-2421
Victoria: 250-387-6121
Toll-free: 1-800-663-7867

For more information about Parenting After Separation, see the Find Out More section.

Protection from violence in the family[edit]

Family violence includes:

  • physical abuse: using physical force,
  • sexual abuse: forced sexual contact of any kind, or
  • psychological and emotional abuse: actions that cause mental and emotional harm.

If you are at risk of family violence, you may need to get a protection order from the court. The protection order is meant to protect you and your children from violence carried out by another family member. Either you, or someone else on your behalf, can apply to the court for the order.

Protection orders can, for example, stop the family member who is violent:

  • from contacting you,
  • from visiting the family home, and
  • from owning a weapon.

If the family member does not obey the protection order, it is a criminal offence. Police can enforce the protection order under the Criminal Code.

If there is a history of family violence or you or your children are at risk, you may be able to get the help of a legal aid lawyer from Legal Services Society. See the Find out More section.

If you plan to go to court on your own to get a court order, you may want to get some help from family duty counsel.

For information about family violence, watch the Talking about Abuse video series. This series can help non-English speakers understand how Canadian law defines family violence. It provides information on where people in BC can get help in their own language.

For more information and help, see the Find Out More section. It links you to resources that can help anyone who may be a victim of family violence.

Separation and sponsorship[edit]

If you are a permanent resident[edit]

If your spouse (married or unmarried) sponsored you to come to Canada and you are now a permanent resident (landed immigrant), you can stay in Canada even if you leave the marriage or common-law relationship.

Your sponsor:

  • cannot make you leave Canada,
  • does not have the right to keep your children or your property, and
  • still has a legal responsibility to help support you and your children.

To find out more about what could happen when a sponsorship does not work, read "If Your Sponsor Abuses You," published by the Legal Services Society. It explains what to do if the person who sponsored you is unwilling or unable to support you, and you are unable to support yourself.

If you are not a permanent resident[edit]

If you are not a permanent resident in Canada and you and your sponsor separate, you will need to get immediate advice about your immigration status. If possible, contact an immigration lawyer.

To find an immigration law lawyer through the Lawyer Referral Service, see the Find Out More section. If there has been violence in the relationship, tell the lawyer.

Going to court[edit]

Couples who cannot reach an agreement may have to go to court. The court process focuses on helping you to resolve as much of your case as possible without having a trial.

Note: The section on the Role of the Courts discusses the levels of court. It is helpful to get legal advice if you are going to court.

Here are some things to expect in the court process:

  • Exchanging information: The law requires you and your spouse to provide each other with "full and true information" so you can resolve your family law dispute. The court rules set out what information you must provide before you go to court.
  • Meeting with a child support clerk: The court might send you to see a child support clerk to help you figure out how much child support should be paid in your case.
  • Meeting with a family justice counsellor: In some Provincial Court locations, you meet with a family justice counsellor before you go to court. The family justice counsellor helps you look at your options and can give you legal information.
  • Meetings to discuss options for settling your case: In BC Supreme Court, you have a meeting called a judicial case conference with a judge or master (a court official). This happens before you can ask the court for an order that your spouse does not agree with. In Provincial Court, you may have a meeting with a judge called a family case conference. This happens before you can have a court hearing.
  • A temporary solution: You may need a temporary solution for parenting arrangements, child and spousal support, and who lives in the family home. You can apply to the court for what is called an interim order. An interim order is for a limited time.

If you and your spouse can agree[edit]

If you and your spouse can reach an agreement, you can get what is called a consent order. You will be able to get a consent order without appearing in court as long as all your documents are in order and the judge is satisfied that you have arranged for the care of and support of your children.

If you and your spouse cannot agree[edit]

If you and your spouse cannot agree, there is a trial in court. A judge decides the issues that you can’t agree on. The judge puts the decision into a final order. Both parents must do what the court order says.

For example: Maria and Eduardo couldn’t agree. They went to court. The judge decided that their child should live with Maria. The judge also decided how often Eduardo could see the child. By law, Eduardo and Maria must obey the court order.
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When children need protection[edit]

Sometimes parents don’t take care of their children. Maybe they leave the children alone, or hurt them or don’t give them enough food. This is child abuse.

If you are aware of a possible case of child abuse, the law requires you to contact the BC Ministry of Children and Family Development. Call the Helpline for Children: 310-1234 (no area code needed). Your action can prevent further child abuse and help the family.

When you call the Helpline for Children, you talk to a social worker who is willing to listen and take action. Actions to protect a child may include:

  • providing or arranging support services to the family, or
  • supervising the child’s care in the home.

If the social worker thinks that the child is in danger, the social worker can remove the child from the home to a safe place. When this happens, the social worker and the parents have to go to court. The social worker has to prove in court that the child was in danger.

The parents have the right to argue that their child should not be taken away from them. The parents should have a lawyer. If they can’t afford a lawyer, they should contact the Legal Services Society. For contact details see the Find Out More section.

The law is to protect children. The judge has to decide if the child needs protection. Then the judge will decide what will happen to the child.

For information about child protection, see two Legal Services Society publications: the booklet Parents’ Rights, Kids’ Rights, and the brochure "If Your Child is Taken."

For more information and help, see the Find Out More section.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by People's Law School, 2013.



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