Specific Communities and Family Law

From Clicklaw Wikibooks

While family law has evolved to treat many minority groups, such as same-sex couples, in the same way as it treats the majority, this is not always true. People are sometimes subject to different laws in certain circumstances.

The resource you're reading has been updated to explain and recognize some of the ways laws apply differently to specific communities. Parts of this chapter deal with further topics unique to Aboriginal families and/or those living on reserves, newcomers to Canada and those who support or rely on them, and the LGBTQ community.

Aboriginal families[edit]

Aboriginal people exist in a unique legal environment arising from the fact that they are the first peoples of what is now known as Canada. Aboriginal people's longstanding occupancy and use of these lands give rise to Aboriginal rights which became constitutionally protected when section 35 of the Constitution Act, 1982 was enacted over 35 years ago. The Constitution recognizes and affirms aboriginal and treaty rights of the First Nations, Inuit, and Métis peoples of Canada.

This chapter focuses on issues in family law that affect BC's Aboriginal families. While all of the usual factors apply to Aboriginal families, courts must also pay attention to Aboriginal ancestry, culture, and traditions when they make decisions, including determining the best interests of Aboriginal children. This is because Aboriginal children have the right to keep a connection to both their culture and heritage, which are the strong foundations of many Aboriginal families. This section briefly reviews particular issues unique to Aboriginal families, including:

  • the care of children,
  • child support,
  • spousal support, and
  • family property and family debt.

The section on Aboriginal Families also briefly addresses issues caused by the Indian Act, a law which has allowed the government to control most aspects of Aboriginal life since its inception in 1876.

Newcomers to Canada and their families[edit]

Many Canadian families are the product of Canadian citizens or permanent residents who partner with people from other countries. Sponsorship by a Canadian citizen or permanent resident of a foreign spouse creates legal issues that are unique to families with members who are immigrants or refugees.

This chapter talks about how family and immigration law overlap in British Columbia. The chapter discusses the differences in vocabulary in the Family Law Act and the federal Immigration and Refugee Protection Act, a sponsor's obligations towards their spouse, and options for immigrant spouses who want to leave an abusive relationship.

LGBTQ issues in family law[edit]

Not too long ago, this resource had an entire chapter about the particular issues affecting those in same-sex relationships. A stand-alone chapter for same-sex relationships, however, is no longer necessary.

For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist because of legislation has been on the wane. From the Little Sisters decision on censorship to Egan v. Canada, [1995] 2 SCR 513 on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the Charter of Rights and Freedoms to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed suit.

Gays and lesbians are just as entitled as straight people to pursue claims relating to:

  • the care of children,
  • child support,
  • spousal support, and
  • the division of property.

Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.

This said, legal uncertainty exists for people who are trans or gender non-binary, at least in some contexts. The section on Issues affecting transgender and transsexual people discusses some of the difficulties that the law has in serving people who traverse the gender spectrum.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Taruna Agrawal, June 10, 2019.

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Normally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court," and "Supreme Court of Canada."

A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family court proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or matters under the Divorce Act. See "judge" and "jurisdiction."

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

A payment made by one spouse, the payor, to the other spouse, the recipient, to help with their day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.

A term under the Family Law Act referring to property acquired by either or both spouses during their relationship, as well as after separation if bought with family property. Both spouses are presumed to be equally entitled to share in family property. See "excluded property."

A term under the Family Law Act referring to debt owed by either or both spouses that accumulated during the spouses' relationship, as well as after separation if used to maintain family property. Both spouses are presumed to be equally liable for family debt.

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship."

An act; a statute; a written law made by a government. See "regulations."

Something which can be owned. See "chattels" and "real property."

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