1,399
edits
Difference between revisions of "Introduction to Family Law in British Columbia"
Jump to navigation
Jump to search
m
Introduction to Family Law in British Columbia (view source)
Revision as of 19:52, 12 July 2019
, 19:52, 12 July 2019→The basic law
m (→The basic law) |
|||
| Line 191: | Line 191: | ||
==The basic law== | ==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 courts. Laws made by the courts 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. | There are two kinds of law: laws made by the governments, called ''legislation'', ''statutes'', ''acts'', and ''regulations''; and, laws made by the courts. Laws made by the courts 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. | ||
Legislation is made by the federal government and the provincial government. The two pieces of legislation that are the most important for family law in British Columbia are the federal ''Divorce Act'' and the provincial ''Family Law Act''. Each piece of legislation deals with different family law problems and applies to different kinds of relationships. | Legislation is made by the federal government and the provincial government. The two pieces of legislation that are the most important for family law in British Columbia are the federal ''Divorce Act'' and the provincial ''Family Law Act''. Each piece of legislation deals with different family law problems and applies to different kinds of relationships. | ||
| Line 205: | Line 205: | ||
The ''Divorce Act'' is going to change a lot in 2020. Among other things, the new ''Divorce Act'' will talk about ''parenting time'' and ''contact'' instead of access, and about ''decision-making responsibility'' instead of custody. | The ''Divorce Act'' is going to change a lot in 2020. Among other things, the new ''Divorce Act'' will talk about ''parenting time'' and ''contact'' instead of access, and about ''decision-making responsibility'' instead of custody. | ||
The ''Family Law Act'' applies to married spouses, unmarried spouses, parents and unmarried adults who are neither married spouses nor unmarried spouses, don't have children, and are perhaps just dating. This includes people in same sex relationships and families that involve more than two adults. This law covers: | The ''Family Law Act'' applies to married spouses, unmarried spouses, parents, and unmarried adults who are neither married spouses nor unmarried spouses, don't have children, and are perhaps just dating. This includes people in same sex relationships and families that involve more than two adults. This law covers: | ||
*guardianship of children, | *guardianship of children, | ||
| Line 248: | Line 248: | ||
There is a bunch of other legislation that deals with family law problems, such as the ''[http://canlii.ca/t/84g5 Adoption Act]'' (which deals with adoption), the ''[http://canlii.ca/t/8481 Name Act]'' (which deals with changing your name and your children's names), the ''[http://canlii.ca/t/8456 Land Title Act]'' (which has to do with land and houses), and the ''[http://canlii.ca/t/84fk Vital Statistics Act]'' (which has to do with registering births, deaths, marriages, and divorces). The most important of these other laws is the [[Child Support Guidelines]]. | There is a bunch of other legislation that deals with family law problems, such as the ''[http://canlii.ca/t/84g5 Adoption Act]'' (which deals with adoption), the ''[http://canlii.ca/t/8481 Name Act]'' (which deals with changing your name and your children's names), the ''[http://canlii.ca/t/8456 Land Title Act]'' (which has to do with land and houses), and the ''[http://canlii.ca/t/84fk Vital Statistics Act]'' (which has to do with registering births, deaths, marriages, and divorces). The most important of these other laws is the [[Child Support Guidelines]]. | ||
The [[Child Support Guidelines]] sets out the rules about how much child support should be paid, according to 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 sets out the rules about when child support can be paid in an amount different than what the tables say should be paid. | The [[Child Support Guidelines]] sets 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 sets out the rules about when child support can be paid in an amount different than what the tables say should be paid. | ||
'''Further reading:''' | '''Further reading:''' | ||
| Line 259: | Line 259: | ||
There are three things that parents must decide when their relationship ends: | There are three things that parents must decide when their relationship ends: | ||
*where the children <span class="noglossary">will</span> mostly live, | |||
*how the parents <span class="noglossary">will</span> make decisions about the important events in the children's lives, and | |||
*how much time each parent <span class="noglossary">will</span> have with the children. | |||
The ''[[Divorce Act]]'' talks about these issues in terms of ''custody'' and ''access''. Custody sort of means where the children live most of the time, but separated parents can both have custody, called ''joint custody'', and not have anywhere close to half of the children's time. In cases like this, joint custody means an equal right to participate in making decisions about the children. Access is the word used to describe the schedule of the child's time between their parents. When the ''Divorce Act'' is changed in 2020, it will talk about these issues in terms of ''parenting orders'' that cover ''decision-making responsibilities'', ''parenting time'' and ''contact.'' | The ''[[Divorce Act]]'' talks about these issues in terms of ''custody'' and ''access''. Custody sort of means where the children live most of the time, but separated parents can both have custody, called ''joint custody'', and not have anywhere close to half of the children's time. In cases like this, joint custody means an equal right to participate in making decisions about the children. Access is the word used to describe the schedule of the child's time between their parents. When the ''Divorce Act'' is changed in 2020, it will talk about these issues in terms of ''parenting orders'' that cover ''decision-making responsibilities'', ''parenting time'', and ''contact.'' | ||
The ''[[Family Law Act]]'' talks about these issues in terms of ''parental responsibilities'', which is really the same as decision-making responsibilities, ''parenting time'' and ''contact''. People who are guardians, usually parents, have parental responsibilities and parenting time. Someone who isn't a guardian, which might include a parent, may have contact with a child. | The ''[[Family Law Act]]'' talks about these issues in terms of ''parental responsibilities'', which is really the same as decision-making responsibilities, ''parenting time'', and ''contact''. People who are guardians, usually parents, have parental responsibilities and parenting time. Someone who isn't a guardian, which might include a parent, may have contact with a child. | ||
Parental responsibilities are all about parenting. They include making decisions about where the children go to school, how they are treated when they get sick, whether they <span class="noglossary">will</span> play sports or take music lessons, and about the religion they <span class="noglossary">will</span> be taught. Parental responsibilities can be shared between guardians or divided between them, so that only one guardian can make decisions about a particular parenting issue. When more than one guardian share a parental responsibility, the guardians must try to work together to make decisions about that issue. | Parental responsibilities are all about parenting. They include making decisions about where the children go to school, how they are treated when they get sick, whether they <span class="noglossary">will</span> play sports or take music lessons, and about the religion they <span class="noglossary">will</span> be taught. Parental responsibilities can be shared between guardians or divided between them, so that only one guardian can make decisions about a particular parenting issue. When more than one guardian share a parental responsibility, the guardians must try to work together to make decisions about that issue. | ||
Parenting time and contact are the terms used to describe the schedule of the child's time between guardians | Parenting time and contact are the terms used to describe the schedule of the child's time between guardians and between guardians and people who are not guardians. | ||
'''Further reading | '''Further reading''' <br /> | ||
Chapter on: | Chapter on: | ||
*[[Children in Family Law Matters]], in particular the sections on [[Custody and Access]] and [[Guardianship, Parenting Arrangements and Contact]] | *[[Children in Family Law Matters]], in particular the sections on [[Custody and Access]] and [[Guardianship, Parenting Arrangements and Contact]] | ||
| Line 279: | Line 279: | ||
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. | 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. | ||
''Child support is not a fee a parent must pay to see the children.'' Child support has nothing to do with custody or guardianship; it has nothing to do with access, parenting time or contact; it has nothing to do with whether a parent is a good parent or a bad parent. A parent has a duty to pay child support just because they are a parent. | ''Child support is not a fee a parent must pay to see the children.'' Child support has nothing to do with custody or guardianship; it has nothing to do with access, parenting time, or contact; it has nothing to do with whether a parent is a good parent or a bad parent. A parent has a duty to pay child support just because they are a parent. | ||
Child support is almost always paid every month in the amount required by the [http://canlii.ca/t/80mh Child Support Guidelines]. A parent's duty to pay child support does not end until the child turns 19. It can last longer than that if a child has an illness or disability that prevents the child from earning a living, or if the child is going to university or college. | Child support is almost always paid every month in the amount required by the [http://canlii.ca/t/80mh Child Support Guidelines]. A parent's duty to pay child support does not end until the child turns 19. It can last longer than that if a child has an illness or disability that prevents the child from earning a living, or if the child is going to university or college. | ||
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 children's time is shared almost equally between the parents; one or more children live with each parent; or, paying the amount required by the Guidelines would cause serious financial hardship to a parent. | 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 children's time is shared almost equally between the parents; one or more children live with each parent; 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, extraordinary expenses are expenses like daycare and orthodontics — big, important expenses that most but not all children have. Where the children have extraordinary expenses, the parents contribute to those expenses in proportion to their incomes. For example, if one parent earns $30,000 per year and the other earns $20,000, the first parent would have to pay 60% of an extraordinary expense and the other would have to pay 40%. | 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, extraordinary expenses are expenses like daycare and orthodontics — big, important expenses that most but not all children have. Where the children have extraordinary expenses, the parents contribute to those expenses in proportion to their incomes. For example, if one parent earns $30,000 per year and the other earns $20,000, the first parent would have to pay 60% of an extraordinary expense and the other would have to pay 40%. | ||
'''Further reading | '''Further reading''' <br /> | ||
Chapter on: | Chapter on: | ||
*[[Child Support]], in particular the section on the [[Child Support Guidelines]] | *[[Child Support]], in particular the section on the [[Child Support Guidelines]] | ||
| Line 295: | Line 295: | ||
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, 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 living-together agreement, but more commonly in a separation agreement. Spousal support is not automatically payable just because people were married or unmarried spouses; the person who wants support must prove that they are entitled to get it. | 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, 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 living-together agreement, but more commonly in a separation agreement. Spousal support is not automatically payable just because people were married or unmarried spouses; the person who wants support must prove that they are entitled to get 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 people in a relationship decided that one of them should quit work and stay at home to raise the children and be a homemaker. A spouse who stays at home may have to leave a job, and it can be very difficult to return to work after being out of the workforce, particularly when the relationship was long and there is no career to return to. | 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 people in a relationship decided that one of them should quit work and stay at home to raise the children and be a homemaker. A spouse who stays at home may have to leave a job, and it can be very difficult to return to work after being out of the workforce, particularly when the relationship was long and there is no career to return to. | ||
The end of a relationship can 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 family were together, however, their combined incomes only had to pay for one rent <span class="noglossary">bill</span>, one electricity <span class="noglossary">bill</span> and one phone <span class="noglossary">bill</span>. | The end of a relationship can 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 <span class="noglossary">bill</span>, one electricity <span class="noglossary">bill,</span> and one phone <span class="noglossary">bill</span>. | ||
Spousal support is usually paid every month for a certain amount of time, although it can be paid indefinitely or in one large lump-sum payment. The amount of spousal support that is paid is usually an amount that the person with more money can afford to pay, using the money left over after that person's basic living expenses have been paid. | Spousal support is usually paid every month for a certain amount of time, although it can be paid indefinitely or in one large lump-sum payment. The amount of spousal support that is paid is usually an amount that the person with more money can afford to pay, using the money left over after that person's basic living expenses have been paid. | ||
| Line 313: | Line 313: | ||
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 their separation. | 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 their separation. | ||
'''Further reading | '''Further reading''' <br /> | ||
Chapter on: | Chapter on: | ||
*[[Spousal Support]], in particular the section on [[The Spousal Support Advisory Guidelines]] | *[[Spousal Support]], in particular the section on [[The Spousal Support Advisory Guidelines]] | ||
| Line 322: | Line 322: | ||
*the property the spouses got during their relationship, including real estate as well as personal property, | *the property the spouses got during their relationship, including real estate as well as personal property, | ||
*bank accounts, investments, RRSPs and pensions, | *bank accounts, investments, RRSPs, and pensions, | ||
*the interest of a spouse in a company, business or partnership, | *the interest of a spouse in a company, business, or partnership, | ||
*debts owed to a spouse, and | *debts owed to a spouse, and | ||
*the increase in value of excluded property during the relationship. | *the increase in value of excluded property during the relationship. | ||
| Line 341: | Line 341: | ||
The spouses' right to a share in the family property and their duty to share in the family debt happens when the spouses separate. Separation doesn't always happen when someone moves out. Spouses can be separated while living together, as long as one of them has said the relationship is over and then behaved as if the relationship was over, for example by not sleeping together or eating together anymore, and by stopping doing chores for the other spouses. | The spouses' right to a share in the family property and their duty to share in the family debt happens when the spouses separate. Separation doesn't always happen when someone moves out. Spouses can be separated while living together, as long as one of them has said the relationship is over and then behaved as if the relationship was over, for example by not sleeping together or eating together anymore, and by stopping doing chores for the other spouses. | ||
'''Further reading | '''Further reading''' <br /> | ||
Chapter on: | Chapter on: | ||
*[[Property & Debt in Family Law Matters]] | *[[Property & Debt in Family Law Matters]] | ||
| Line 359: | Line 359: | ||
#the spouses have separated and have stayed separated for more than one year, | #the spouses have separated and have stayed separated for more than one year, | ||
#a spouse has had sex with someone other than the other spouse, called ''adultery'', or | #a spouse has had sex with someone other than the other spouse, called ''adultery'', or | ||
#a spouse has been verbally, emotionally or physically abusive to the other spouse, which is what the ''[[Divorce Act]]'' means by ''cruelty''. | #a spouse has been verbally, emotionally, or physically abusive to the other 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. | 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. | ||
'''Further reading | '''Further reading''' <br /> | ||
Chapter on: | Chapter on: | ||
*[[Separation & Divorce]] | *[[Separation & Divorce]] | ||