Family Law Act Basics: Difference between revisions
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====Determining the best interests of children==== | ====Determining the best interests of children==== | ||
To decide what is in a child’s best interest, parents and judges must consider all of the needs and circumstances of the child, as well as a number of factors that are listed at | To decide what is in a child’s best interest, parents and judges must consider all of the needs and circumstances of the child, as well as a number of factors that are listed at section 37. These factors include: | ||
*the child’s health and emotional well-being, | *the child’s health and emotional well-being, | ||
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====The best interests of children and family violence==== | ====The best interests of children and family violence==== | ||
When family violence is an issue, parents and judges must consider the best-interests factors at | When family violence is an issue, parents and judges must consider the best-interests factors at section 37, as well as a list of considerations set out at section 38, to help assess the impact of the family violence on the child and on a person’s capacity to care for the child. These considerations include: | ||
*the severity of the family violence, | *the severity of the family violence, | ||
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====The best interests of children and children’s views==== | ====The best interests of children and children’s views==== | ||
Under | Under section 211 of the ''[[Family Law Act]]'', the court can order that a family justice counsellor, a social worker, or another person like a clinical counsellor or a psychologist, assess one or more of: | ||
*the needs of a child, | *the needs of a child, | ||
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*the ability of a person to meet the child’s needs. | *the ability of a person to meet the child’s needs. | ||
Views of the child reports can also be ordered under | Views of the child reports can also be ordered under section 37(2)(b). These reports usually just describe the child’s views without making an assessment or recommendations, and are often much cheaper and faster to get than a full parenting assessment under section 211. | ||
===Who is a parent?=== | ===Who is a parent?=== | ||
Under the ''Family Law Act'', a child’s parents are presumed to be the child’s birth mother and biological father. If the court is not sure who the child’s father is, the court can order medical tests to determine who the father is under | Under the ''Family Law Act'', a child’s parents are presumed to be the child’s birth mother and biological father. If the court is not sure who the child’s father is, the court can order medical tests to determine who the father is under section 33. | ||
When people have a child through assisted reproduction, a person who donates eggs or sperm is not presumed to be a legal parent. However, a woman who is a surrogate mother is presumed to be a parent, and her spouse may also be a legal parent. The ''Family Law Act'' lets people make agreements when they have a child through assisted reproduction. These agreements can say who is a parent and who isn’t. The people who can be a parent under an assisted reproduction agreement are: | When people have a child through assisted reproduction, a person who donates eggs or sperm is not presumed to be a legal parent. However, a woman who is a surrogate mother is presumed to be a parent, and her spouse may also be a legal parent. The ''Family Law Act'' lets people make agreements when they have a child through assisted reproduction. These agreements can say who is a parent and who isn’t. The people who can be a parent under an assisted reproduction agreement are: | ||
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===What are parental responsibilities?=== | ===What are parental responsibilities?=== | ||
The different ways that guardians care for a child and the decisions guardians have to make are called ''parental responsibilities.'' Parental responsibilities are listed at | The different ways that guardians care for a child and the decisions guardians have to make are called ''parental responsibilities.'' Parental responsibilities are listed at section 41 of the ''[[Family Law Act]]'' and include: | ||
*making decisions about the day-to-day care of the child, | *making decisions about the day-to-day care of the child, | ||
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===How do agreements and orders about parenting time and contact work?=== | ===How do agreements and orders about parenting time and contact work?=== | ||
Agreements about parenting time and contact can be made by the child’s guardians. | Agreements about parenting time and contact can be made by the child’s guardians. Both the Provincial Court and the Supreme Court can make orders about parenting time and contact. | ||
Agreements and orders about parenting time and contact can set a fixed schedule of time with a child or they can say that the parenting time or contact will happen when everyone agrees, as the child prefers or on some other term. Parenting time and contact can also be on conditions, for example that the person will not smoke or drink during their time with the child, or be supervised by a third party. | Agreements and orders about parenting time and contact can set a fixed schedule of time with a child or they can say that the parenting time or contact will happen when everyone agrees, as the child prefers or on some other term. Parenting time and contact can also be on conditions, for example that the person will not smoke or drink during their time with the child, or be supervised by a third party. | ||
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*a person with parenting time or contact fails to use their parenting time or contact. | *a person with parenting time or contact fails to use their parenting time or contact. | ||
In certain situations, it isn’t wrongful to withhold a child from a person entitled to parenting time or contact. Under | In certain situations, it isn’t wrongful to withhold a child from a person entitled to parenting time or contact. Under section 62, it isn’t wrongful to withhold a child if: | ||
*the guardian with the child believes there is a risk of family violence, or that the other person is impaired by alcohol or drugs, | *the guardian with the child believes there is a risk of family violence, or that the other person is impaired by alcohol or drugs, | ||
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===What happens if a guardian wants to move?=== | ===What happens if a guardian wants to move?=== | ||
If a guardian wants to move, with or without a child, and the move <span class="noglossary">will</span> have an impact on the child’s relationship with another guardian or someone who has contact with the child, the guardian must usually give 60 days’ notice of the move, in writing. The notice must say where the guardian plans on moving to and when the guardian plans on moving. See the discussion on relocation in the | If a guardian wants to move, with or without a child, and the move <span class="noglossary">will</span> have an impact on the child’s relationship with another guardian or someone who has contact with the child, the guardian must usually give 60 days’ notice of the move, in writing. The notice must say where the guardian plans on moving to and when the guardian plans on moving. See the discussion on relocation in the section on [[Changing_Family_Law_Orders_and_Agreements_Involving_Children#Relocating_with_or_without_a_child | Changing Family Law Orders and Agreements Involving Children]] for more information. | ||
Only other guardians can object when a guardian plans on moving. If a guardian objects, they have 30 days to go to court to get an order preventing the move. Remember that only a guardian can object to a proposed move! Someone who has contact can't prevent a guardian from moving. | Only other guardians can object when a guardian plans on moving. If a guardian objects, they have 30 days to go to court to get an order preventing the move. Remember that only a guardian can object to a proposed move! Someone who has contact can't prevent a guardian from moving. | ||
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*have lived together in a marriage-like relationship for less than two years and have had a child together. | *have lived together in a marriage-like relationship for less than two years and have had a child together. | ||
A spouse’s entitlement to spousal support is determined based on factors taken from the ''[[Divorce Act]]'', set out at | A spouse’s entitlement to spousal support is determined based on factors taken from the ''[[Divorce Act]]'', set out at section 161 of the ''Family Law Act''. | ||
Remember that no one is automatically entitled to get spousal support the way a child is automatically entitled to benefit from child support. Anyone who is a spouse can ''ask'' for spousal support, but being able to ask doesn’t mean you’ll get it. Someone asking for spousal support also must show that they are ''entitled'' to spousal support. | Remember that no one is automatically entitled to get spousal support the way a child is automatically entitled to benefit from child support. Anyone who is a spouse can ''ask'' for spousal support, but being able to ask doesn’t mean you’ll get it. Someone asking for spousal support also must show that they are ''entitled'' to spousal support. | ||
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Remember that there are no limits to when married spouses can ask for spousal support under the ''Divorce Act''. | Remember that there are no limits to when married spouses can ask for spousal support under the ''Divorce Act''. | ||
It's important to know that under | It's important to know that under section 198(5), the two-year countdown from the date of divorce or separation stops while the spouses are trying to resolve their dispute outside of court with the help of a family justice counsellor, a mediator, a lawyer, or an arbitrator. | ||
===How are the amount and duration of spousal support calculated?=== | ===How are the amount and duration of spousal support calculated?=== | ||
When a spouse is entitled to receive spousal support, the amount to be paid and the length of time support should be paid for, called ''duration'', is determined based on factors taken from the ''Divorce Act'', set out at | When a spouse is entitled to receive spousal support, the amount to be paid and the length of time support should be paid for, called ''duration'', is determined based on factors taken from the ''Divorce Act'', set out at section 162 of the ''Family Law Act''. | ||
The amount of spousal support to be paid and the duration that it should be paid for is often determined using the [http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/spag/index.html Spousal Support Advisory Guidelines]. The Advisory Guidelines is not a law like the Child Support Guidelines and is not mandatory. The ''Family Law Act'' does not mention the Advisory Guidelines. However, the Advisory Guidelines can be very helpful to figure out how much should be paid and how long it should be paid for. | The amount of spousal support to be paid and the duration that it should be paid for is often determined using the [http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/spag/index.html Spousal Support Advisory Guidelines]. The Advisory Guidelines is not a law like the Child Support Guidelines and is not mandatory. The ''Family Law Act'' does not mention the Advisory Guidelines. However, the Advisory Guidelines can be very helpful to figure out how much should be paid and how long it should be paid for. | ||
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Most of the time, spousal support is paid every month, usually on the first day of the month. If child support is also being paid, child support and spousal support payments can be staggered if that's fair to both parties. It is possible for spousal support to be paid in a single lump sum. Payors can be required to pay by giving the recipient a series of post-dated cheques. | Most of the time, spousal support is paid every month, usually on the first day of the month. If child support is also being paid, child support and spousal support payments can be staggered if that's fair to both parties. It is possible for spousal support to be paid in a single lump sum. Payors can be required to pay by giving the recipient a series of post-dated cheques. | ||
If a payor cannot pay both spousal support and child support, | If a payor cannot pay both spousal support and child support, section 173 of the ''Family Law Act'' requires the court to give priority to child support. | ||
===Are there tax consequences?=== | ===Are there tax consequences?=== | ||
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*unmarried spouses have to start a proceeding to divide property and debt within two years of the date they separated. | *unmarried spouses have to start a proceeding to divide property and debt within two years of the date they separated. | ||
It's important to know that under | It's important to know that under section 198(5), the two-year countdown from the date of divorce or separation stops while the spouses are trying to resolve their dispute outside of court with the help of a family justice counsellor, a mediator, a lawyer, or an arbitrator. | ||
===What is excluded property?=== | ===What is excluded property?=== | ||
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*each be responsible for one-half of family debt. | *each be responsible for one-half of family debt. | ||
When spouses separate, they each become one-half owners of all family property as tenants in common and one-half responsible for all family debt. Under the ''Family Relations Act'', spouses didn’t become owners of family assets as tenants in common until they made a separation agreement, got divorced, or the court made a declaration under | When spouses separate, they each become one-half owners of all family property as tenants in common and one-half responsible for all family debt. Under the ''Family Relations Act'', spouses didn’t become owners of family assets as tenants in common until they made a separation agreement, got divorced, or the court made a declaration under section 57. Now all it takes is separation. | ||
The court can divide family property and family debt unequally if an equal division would be "significantly unfair." The court can take into account a number of reasons why an equal division could be significantly unfair including: | The court can divide family property and family debt unequally if an equal division would be "significantly unfair." The court can take into account a number of reasons why an equal division could be significantly unfair including: | ||
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===What is family violence?=== | ===What is family violence?=== | ||
''Family violence'' is defined in very broad terms in | ''Family violence'' is defined in very broad terms in section 1 of the ''[[Family Law Act]]'', and includes obvious things like physical abuse as well as: | ||
*sexual abuse, | *sexual abuse, | ||
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===How do you determine what is in children’s best interests?=== | ===How do you determine what is in children’s best interests?=== | ||
To decide what is in a child’s best interests, parents and judges must consider all of the needs and circumstances of the child and a number of factors that are listed at | To decide what is in a child’s best interests, parents and judges must consider all of the needs and circumstances of the child and a number of factors that are listed at section 37 of the ''Family Law Act''. The best interests factors include the impact of any family violence on the child. When family violence is an issue, parents and judges must consider an additional list of factors to assess the impact of the family violence on the child and on a person’s capacity to care for the child. The family violence factors are set out at section 38 and include: | ||
*the nature and severity of the family violence, | *the nature and severity of the family violence, | ||
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====Applying for a protection orders==== | ====Applying for a protection orders==== | ||
A person at risk of family violence, or someone on that person’s behalf, can ask the court for a protection order as long as the at-risk person and the person from whom the protection order is sought are ''family members'' as defined by | A person at risk of family violence, or someone on that person’s behalf, can ask the court for a protection order as long as the at-risk person and the person from whom the protection order is sought are ''family members'' as defined by section 1. In general, a family member is someone who lives with the other person, someone who is a spouse of the other person, and someone who is a parent with the other person. People who don't live together and are just dating will not quality as family members. | ||
Applications for protection orders can be made without notice to anyone else, and may be made whether there is an existing court proceeding or not. | Applications for protection orders can be made without notice to anyone else, and may be made whether there is an existing court proceeding or not. | ||
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====Suspended time limits==== | ====Suspended time limits==== | ||
Court proceedings about spousal support or the division of property and debt must normally be started within two years of the date of divorce, for married spouses, or within two years of the date of separation, for unmarried spouses. Under | Court proceedings about spousal support or the division of property and debt must normally be started within two years of the date of divorce, for married spouses, or within two years of the date of separation, for unmarried spouses. Under section 198 of the ''Family Law Act'', the countdown for the two-year limit stops while the spouses are involved in a family dispute resolution process with a family justice counsellor, mediator, lawyer, or arbitrator. | ||
===What is mediation?=== | ===What is mediation?=== | ||
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====Preventing misuse of court processes==== | ====Preventing misuse of court processes==== | ||
If a party is frustrating or misusing the court process, the court can make an order prohibiting the party from making further applications without permission under | If a party is frustrating or misusing the court process, the court can make an order prohibiting the party from making further applications without permission under section 221. When making such orders, the court can also: | ||
*make the order last for a specific period of time, or until the party has complied with another order, | *make the order last for a specific period of time, or until the party has complied with another order, | ||
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====Conduct orders==== | ====Conduct orders==== | ||
Under | Under section 222 of the ''Family Law Act'', the court may make a ''conduct order'' to: | ||
*encourage settlement, | *encourage settlement, | ||
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===How are orders enforced?=== | ===How are orders enforced?=== | ||
Some orders, like orders about parenting time and contact, have their own enforcement procedures. Where an order under the ''Family Law Act'' doesn't have a specific enforcement procedure, the general enforcement provisions of the act are used. Under | Some orders, like orders about parenting time and contact, have their own enforcement procedures. Where an order under the ''Family Law Act'' doesn't have a specific enforcement procedure, the general enforcement provisions of the act are used. Under section 230, the court may enforce an order by requiring a party to: | ||
*post security in court to guarantee their future good behaviour, | *post security in court to guarantee their future good behaviour, | ||