Difference between revisions of "The Law for Family Matters"

Both the Parliament of Canada and the Legislative Assembly of British Columbia have the power to make laws in their different areas of authority. This kind of law is called legislation, and each each piece of legislation, called a statute, is intended to address a specific subject, like how we drive a car or how houses are built, where and when we can fish or hunt, what companies can do, and how schools, hospitals and the post office work. Legislation governs how we interact with each other and implements government policy.  

Because statutes and regulations have such a big impact on how we live our lives, they are relatively easy to find and relatively easy to understand. Unlike the common law, legislation is written down and organized. All of the current federal statutes can be found on the website of the Department of Justice. All of the current provincial statutes can be found on the website of the Queen's Printer.  

===The Division of Powers===

The governments' different areas of legislative authority are set out in ss. 91 and 92 of the ''Constitution Act, 1867''. The federal government can only make laws about the subjects set out in s. 91 and the provincial governments can only make laws about the subjects set out in s. 92.

From a family law perspective, this means that only the federal government has the authority to make laws about marriage and divorce, while the provincial governments have the exclusive authority to make laws about marriage ceremonies, the division of property and civil rights. As a result, the federal ''Divorce Act'' talks about divorce and issues that are related to divorce, like the care of children, child support and spousal support. The provincial ''Family Law Act'' talks about the care of children, child support and spousal support as well, but also talks about the division of family property and family debt, the management of children's property and determining the parentage of children.

===The Doctrine of Paramountcy===

Sometimes the subjects over which each level of government has authority overlap and, according to a legal principle called the doctrine of paramountcy, all laws are not created equal. Under this doctrine, federal legislation on a subject trumps any provincial legislation on the same subject. This is important because in family law both the ''Divorce Act'' and the ''Family Law Act'' deal with child support and spousal support. As a result, orders under ''Divorce Act'' will always be paramount to orders under the ''Family Law Act'' on the same subject.

===Family Law Legislation===

The two most important pieces of legislation relating to family are, as you will have gathered, the federal ''Divorce Act'' and the provincial ''Family Law Act''. The most important regulation is the Child Support Guidelines, a regulation to the ''Divorce Act'' that has also been adopted for the ''Family Law Act''. The ''Divorce Act'' talks about:

#divorce;

#custody of and access to children;

#child support; and,

#determining the parentage of children;

#guardianship, parental responsibilities and parenting time;

#contact with a child;

#child support;

#spousal support;

#family property, family debt and excluded property;

#children's property;

#protection orders; and,

The Child Support Guidelines talks about:

#calculating child support and determining children's special expenses;

#determining income; and,

Because family law issues can be very broad and touch on other areas of law, such as contract law or company law, other pieces of legislation may also apply to a problem. For example, the ''Name Act'' allows a spouse to change her name following a divorce, the ''Adoption Act'' deals with adoption, the ''Land Title Act'' deals with real property, the ''Partition of Property Act'' allows a co-owner of real property to force the sale of the property, and the ''Companies Act'' deals with the incorporation of companies, shareholders' loans and other things that may be important if a spouse owns or controls a company.