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| The ''Divorce Act'' changed on March 1, 2021. This wikibook is being updated to reflect these and other important changes to family law in British Columbia. In the meantime, we've prepared a summary of the more important changes. Read our page on [[the New Divorce Act]].
| | {{REVIEWED LSLAP | date= August 12, 2021}} |
| | {{LSLAP Manual TOC|expanded = family}} |
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| The ''[http://canlii.ca/t/7vbw Divorce Act]'', RSC 1985, c 3 (2nd Supp) is a federal law that you can find, along with other federal laws, at the website of the [http://laws-lois.justice.gc.ca/eng/acts/D-3.4/page-1.html federal Department of Justice], or on [http://canlii.ca/t/7vbw CanLII], a free website for searching Canadian court decisions and legislation. Because of a constitutional rule called the "doctrine of paramountcy," the ''Divorce Act'' is considered to be "superior" to the provincial ''[[Family Law Act]]''. As a result, if you are entitled to ask for an order under the ''Divorce Act'' about child support or spousal support, you probably should.
| | == A. Note on the Family Law Act and this Manual == |
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| The ''Divorce Act'' only applies to ''married spouses'', people who are or were married to each other by a marriage commissioner or a religious official licensed to perform marriages. If you are not legally married, the ''Family Law Act'' is the only game in town. Although the court may allow someone who isn't a spouse to apply under the ''Divorce Act'' for an order relating to custody of or access to a child, that person must get the court's permission first, and the spouses must have already started a court proceeding between each other.
| | On March 18, 2013, British Columbia’s ''Family Law Act [FLA]'' came into force. The ''FLA'' is the culmination of many years of research and policy development, and has transformed British Columbia family law dramatically . |
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| You must also be ''ordinarily resident'' in your province for at least one year before you can ask for an order under the ''Divorce Act''. This means that you might have to delay filing for a divorce if you've moved to a new province within the last year.
| | The current Manual chapter deals primarily with the ''FLA'' rather than the previous ''Family Relations Act [FRA]''. If you are starting a legal challenge in family law now or in the future, the ''FLA'' will apply to your case. However, if you made a claim for property division before the ''FLA'' came into force or if you are making a claim to enforce, set aside, or replace an agreement respecting property division made before the ''FLA'' came into force (March 18, 2013), then those claims will be decided under the ''FRA''; all of your other claims (such as for parenting arrangements, child support, spousal support) will be dealt with under the ''FLA'', or the ''Divorce Act (DA)'', if it applies. |
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| The ''Divorce Act'' refers to children as ''children of the marriage''. A child of the marriage is defined in section 2(1) as:
| | If your case still involves the ''FRA'', we encourage you to look at an older version of this Manual, as we will not deal with the ''FRA'' in this version. |
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| <blockquote><tt>A child of two spouses or former spouses who, at the material time,</tt></blockquote>
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| <blockquote><blockquote><tt>(a) is under the age of majority and who has not withdrawn from their charge, or</tt></blockquote></blockquote>
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| <blockquote><blockquote><tt>(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other <span class="noglossary">cause</span>, to withdraw from their charge or to obtain the necessaries of life.</tt></blockquote></blockquote>
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| In other words, a child of the marriage is someone who is less than 19 years old, the age of majority in British Columbia, or who is 19 and older if the child cannot support themselves. Since only people qualifying as ''spouses'' are obliged to pay child support, the definition of child of the marriage is expanded in section 2(2) to include stepparents:
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| <blockquote><tt>For the purposes of the definition “child of the marriage” in subsection (1), a child of two spouses or former spouses includes</tt></blockquote>
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| <blockquote><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
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| <blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent</tt></blockquote></blockquote>
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| The ''Divorce Act'' covers these basic subjects:
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| *divorce,
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| *custody of and access to children,
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| *child support, and
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| *spousal support.
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| The ''Divorce Act'' is going to change in 2020, as a result of [https://www.parl.ca/DocumentViewer/en/42-1/bill/C-78/third-reading Bill C-78]. Among other things, how we talk about the care of children will change. We will be talking about "parenting orders" and "parenting plans" that cover "decision-making responsibilities," "parenting time," and "contact" with a child. Other changes will:
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| *expand the things courts and parents have to think about when deciding what is in the best interests of children,
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| *require parents to protect the children from their conflict,
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| *require parents to try to resolve family law disputes out of court before going to court, and
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| *implement new rules for when one parent wants to move with a child away from the other parents.
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| ''[[JP Boyd on Family Law]]'' provides extensive coverage of the ''Divorce Act'', including a chapter on [[Divorce Act Basics|''Divorce Act'' Basics]].
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| <span style="color:#D2691E">'''Important changes'''</span> <br />
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| Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people. Decision-making responsibility under the ''Divorce Act'' means the same thing as parental responsibilities under the ''Family Law Act''.
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