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Difference between revisions of "Family Law Act Basics"
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===Who does the ''Family Law Act'' apply to?=== | ===Who does the ''Family Law Act'' apply to?=== | ||
The ''[[Family Law Act]]'' is the main law on family breakdown in British Columbia. Although there is also the federal ''Divorce Act'', the ''[[Divorce Act]]'' only applies to married spouses. The ''[[Family Law Act]]'' applies to everyone in a family relationship in British Columbia, including people who: | The ''[[Family Law Act]]'' is the main law on family breakdown in British Columbia. Although there is also the federal ''[[Divorce Act]]'', the ''[[Divorce Act]]'' only applies to married spouses. The ''[[Family Law Act]]'' applies to everyone in a family relationship in British Columbia, including people who: | ||
*are married spouses, | *are married spouses, | ||
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*the claim for child support is made within one year of the spouse’s last contribution to the child’s costs. | *the claim for child support is made within one year of the spouse’s last contribution to the child’s costs. | ||
Remember that under the ''Divorce Act'', a stepparent is someone who is married to a parent and "stands in the place of a parent". This is a different legal test. | Remember that under the ''[[Divorce Act]]'', a stepparent is someone who is married to a parent and "stands in the place of a parent". This is a different legal test. | ||
===How is the amount of child support calculated?=== | ===How is the amount of child support calculated?=== | ||
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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 s. 161 of the ''Family Law Act''. | A spouse’s entitlement to spousal support is determined based on factors taken from the ''[[Divorce Act]]'', set out at s. 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 they’ll get it. They must also 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 they’ll get it. They must also show that they are entitled to spousal support. | ||
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===When do claims for spousal support have to be made?=== | ===When do claims for spousal support have to be made?=== | ||
Under the ''Family Law Act'': | Under the ''[[Family Law Act]]'': | ||
*married spouses have to start a court proceeding for spousal support within two years of the date of their divorce or the annulment of their marriage, and | *married spouses have to start a court proceeding for spousal support within two years of the date of their divorce or the annulment of their marriage, and | ||
*unmarried spouses have to start a proceeding for spousal support within two years of the date they separated. | *unmarried spouses have to start a proceeding for spousal support within two years of the date they separated. | ||
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]]''. | ||
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. | 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. | ||
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===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 s. 162 of the ''Family Law Act''. | 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 s. 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 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. | The amount of spousal support to be paid and the duration that it should be paid for is often determined using the 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. | ||
===Is a spouse’s conduct taken into account?=== | ===Is a spouse’s conduct taken into account?=== | ||
Under the ''Divorce Act'', the court is not allowed to consider a spouse’s behaviour when making an order about spousal support. The same thing is generally true under the ''Family Law Act'', except that the act allows the court to take into account misconduct that: | Under the ''[[Divorce Act]]'', the court is not allowed to consider a spouse’s behaviour when making an order about spousal support. The same thing is generally true under the ''[[Family Law Act]]'', except that the act allows the court to take into account misconduct that: | ||
*unreasonably prolongs a spouse’s need for support | *unreasonably prolongs a spouse’s need for support, or | ||
*unreasonably undermines a spouse’s ability to pay support. | *unreasonably undermines a spouse’s ability to pay support. | ||
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People often try to avoid this problem by agreeing that spousal support <span class="noglossary">will</span> be paid for now, but that <span class="noglossary">will</span> be reconsidered in the future, called a ''review'', after a certain amount of time has passed or when a certain event has happened. | People often try to avoid this problem by agreeing that spousal support <span class="noglossary">will</span> be paid for now, but that <span class="noglossary">will</span> be reconsidered in the future, called a ''review'', after a certain amount of time has passed or when a certain event has happened. | ||
The ''Family Law Act'' says that agreements and orders for spousal support can be reviewable. Agreements and orders for reviewable spousal support can specify: | The ''[[Family Law Act]]'' says that agreements and orders for spousal support can be reviewable. Agreements and orders for reviewable spousal support can specify: | ||
*what <span class="noglossary">will</span> trigger the review, | *what <span class="noglossary">will</span> trigger the review, | ||
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*the factors that <span class="noglossary">will</span> be considered at the review. | *the factors that <span class="noglossary">will</span> be considered at the review. | ||
The ''Family Law Act'' says that a review can also be triggered when someone begins to receive a pension, even if the agreement or order for spousal support doesn’t call for the review. | The ''[[Family Law Act]]'' says that a review can also be triggered when someone begins to receive a pension, even if the agreement or order for spousal support doesn’t call for the review. | ||
===What about if the payor dies?=== | ===What about if the payor dies?=== | ||
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===Who is entitled to ask to divide property and debt?=== | ===Who is entitled to ask to divide property and debt?=== | ||
Only spouses can ask to divide property and debt. Under the ''Family Law Act'', ''spouse'' includes people who: | Only spouses can ask to divide property and debt. Under the ''[[Family Law Act]]'', ''spouse'' includes people who: | ||
*are married to each other, and | *are married to each other, and | ||
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===When do claims for the division of property and debt have to be made?=== | ===When do claims for the division of property and debt have to be made?=== | ||
Under the ''Family Law Act'': | Under the ''[[Family Law Act]]'': | ||
*married spouses have to start a court proceeding to divide property and debt within two years of the date of their divorce or the annulment of their marriage, and | *married spouses have to start a court proceeding to divide property and debt within two years of the date of their divorce or the annulment of their marriage, and | ||
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===Family property=== | ===Family property=== | ||
''Family property'' is the property either or both spouses got after the date they began to live together or got married, whichever was first. "Ordinary use for a family purpose," the test under the old ''Family Relations Act'', doesn’t matter under the ''Family Law Act''. Family property includes: | ''Family property'' is the property either or both spouses got after the date they began to live together or got married, whichever was first. "Ordinary use for a family purpose," the test under the old ''Family Relations Act'', doesn’t matter under the ''[[Family Law Act]]''. Family property includes: | ||
*real estate, | *real estate, | ||
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====Family property and family debt==== | ====Family property and family debt==== | ||
Under the ''Family Law Act'', spouses are presumed to: | Under the ''[[Family Law Act]]'', spouses are presumed to: | ||
*each be entitled to one-half of family property, regardless of how they contributed to or used the property, and | *each be entitled to one-half of family property, regardless of how they contributed to or used the property, and | ||
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===Foreign property=== | ===Foreign property=== | ||
Under the ''Family Law Act'', the court can make orders about family property that is located outside of British Columbia, including about the: | Under the ''[[Family Law Act]]'', the court can make orders about family property that is located outside of British Columbia, including about the: | ||
*safekeeping of the property, | *safekeeping of the property, | ||
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===Children’s Property=== | ===Children’s Property=== | ||
Children sometimes get large amounts of money or property from inheritances, insurance policies or court awards. Under the ''Family Law Act'', a child’s guardians are not automatically the trustees of the child’s property, except for property below a certain value or of a certain type that <span class="noglossary">will</span> be decided by regulation. | Children sometimes get large amounts of money or property from inheritances, insurance policies or court awards. Under the ''[[Family Law Act]]'', a child’s guardians are not automatically the trustees of the child’s property, except for property below a certain value or of a certain type that <span class="noglossary">will</span> be decided by regulation. | ||
A guardian may apply to court to be appointed as trustee for the child’s property. Only the Supreme Court can make orders about children’s property. | A guardian may apply to court to be appointed as trustee for the child’s property. Only the Supreme Court can make orders about children’s property. | ||
==Family | ==Family violence and protection orders== | ||
===What is family violence?=== | ===What is family violence?=== | ||
''Family violence'' is defined in very broad terms in s. 1 of the ''Family Law Act'', and includes obvious things like physical abuse as well as: | ''Family violence'' is defined in very broad terms in s. 1 of the ''[[Family Law Act]]'', and includes obvious things like physical abuse as well as: | ||
*sexual abuse, | *sexual abuse, | ||
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*the harm caused to the child’s safety and well-being. | *the harm caused to the child’s safety and well-being. | ||
The ''Family Law Act'' also says that an agreement or order is presumed not to be in the best interests of a child unless it protects the child’s safety and well-being to the greatest extent possible. | The ''[[Family Law Act]]'' also says that an agreement or order is presumed not to be in the best interests of a child unless it protects the child’s safety and well-being to the greatest extent possible. | ||
===Protection orders=== | ===Protection orders=== | ||
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====What happens when a protection order conflicts with another order?==== | ====What happens when a protection order conflicts with another order?==== | ||
If a protection order conflicts with another order made under the ''Family Law Act'', like an order for parenting time or contact with a child, the parts of the earlier order that are conflict with the protection order are suspended until either order is changed to remove the conflict or until the protection order expires. | If a protection order conflicts with another order made under the ''[[Family Law Act]]'', like an order for parenting time or contact with a child, the parts of the earlier order that are conflict with the protection order are suspended until either order is changed to remove the conflict or until the protection order expires. | ||
This rule applies to orders that are like protection orders and are made under the ''Criminal Code'' or under the laws of another jurisdiction. | This rule applies to orders that are like protection orders and are made under the ''Criminal Code'' or under the laws of another jurisdiction. | ||
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====How are protection orders enforced?==== | ====How are protection orders enforced?==== | ||
Protection orders cannot be enforced under the ''Family Law Act'' or the provincial Offence Act. They can only be enforced under s.127 of the ''Criminal Code'', which makes breach of a court order a criminal offence. | Protection orders cannot be enforced under the ''[[Family Law Act]]'' or the provincial Offence Act. They can only be enforced under s.127 of the ''Criminal Code'', which makes breach of a court order a criminal offence. | ||
The ''Family Law Act'' directs police officers to take action to enforce a protection order, and to use reasonable force if necessary. | The ''[[Family Law Act]]'' directs police officers to take action to enforce a protection order, and to use reasonable force if necessary. | ||
==Out of | ==Out of court processes== | ||
===What are the alternatives to going to court?=== | ===What are the alternatives to going to court?=== | ||
Under the ''Family Law Act'', processes that help people resolve family law problems outside of court are called ''family dispute resolution'' processes. Family dispute resolution processes include: | Under the ''[[Family Law Act]]'', processes that help people resolve family law problems outside of court are called ''family dispute resolution'' processes. Family dispute resolution processes include: | ||
*assistance from family justice counsellors, | *assistance from family justice counsellors, | ||
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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 s. 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. | 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 s. 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. | ||
===Mediation=== | ===Mediation=== | ||
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The result of an arbitration process is the arbitrator’s written award. The arbitrator’s award is private, but can be filed in court and be enforced like a court order. | The result of an arbitration process is the arbitrator’s written award. The arbitrator’s award is private, but can be filed in court and be enforced like a court order. | ||
Arbitration in British Columbia is governed by the ''Arbitration Act''. The ''Family Law Act'' makes a number of changes to this law to improve how it deals with family law problems. | Arbitration in British Columbia is governed by the ''[Arbitration Act''. The ''[[Family Law Act]]'' makes a number of changes to this law to improve how it deals with family law problems. | ||
===Parenting coordination=== | ===Parenting coordination=== | ||
