Learning about Family Law

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by People's Law School in February 2023.

Family law is the area of law that deals with relationships, marriage, and children.

Family relationships

The laws in play

Image via www.istock.com

There are two main laws dealing with family law. They are the:

• Family Law Act: This BC law applies to all couples (married and unmarried).
• Divorce Act: This federal law applies to married couples only (or those who used to be married).

These laws (and others) apply in the same way to people in opposite-sex and same-sex relationships.

Family law and Indigenous Peoples

For many family law matters, the same laws apply to everyone. For example, there are no distinct laws for Indigenous Peoples about getting married.

There are some situations where a person’s Indigenous identity and heritage are considered. For example, a court will consider an Indigenous child's upbringing, culture and heritage in deciding what parenting arrangements are in the child’s best interests.

A few laws about family matters are different for Indigenous Peoples. For example, when a couple separates, if one of them lives on a First Nation reserve, certain other laws apply. Legal Aid BC explains the family laws that apply to Indigenous Peoples at family.legalaid.bc.ca/aboriginal-people.

Getting married

To get married in BC, someone has to be unmarried and age 19 or older. (Young people between 16 and 19 can marry with the consent of their parents or guardians.) They also have to understand the nature of the marriage ceremony.

Someone doesn't have to be a resident of BC to get married here. But they do need a marriage licence. They need to apply for it some time in the three months before their wedding date.

A valid marriage lasts until one partner dies or until the marriage is legally ended by a divorce.

Marriage and marriage-like relationships

When someone is married, the law says they are a spouse. As a spouse, they have legal rights and responsibilities about caring for each other and their children.

Someone is also considered a spouse under the law in two other situations:

• If they’ve lived together in a marriage-like relationship for two years or more.
• If they’ve lived together in a marriage-like relationship and have a child together.

Many people call a marriage-like relationship a “common-law” relationship. This type of relationship ends when a couple begins to live apart.

Guardians and guardianship

A child’s parents are the guardians of the child while they live together and after they separate. This means they are responsible for caring for the child and making decisions affecting the child. If the parents separate, both remain the child’s guardians, unless an agreement or court order removes one of them as a guardian.

Generally, a parent who has never lived with their child is not the child’s guardian. There are a few exceptions, such as if they regularly care for the child.

People other than parents — such as grandparents, for example — can sometimes be guardians. But they must apply to court for an order naming them as guardians.

Family law agreements

A family law agreement is a written contract. It sets out a couple’s decisions about the legal issues in their relationship.

Couples can make an agreement at any time. They can make one before moving in together, while living together, or when they separate.

An agreement made before or while a couple lives together can cover what will happen during the relationship. For example, it can describe how household chores or expenses will be divided. It can also set out what will happen if the relationship ends.

An agreement made after a couple separates covers their decisions about parenting, financial support, and dividing property and debt. This type of agreement is called a separation agreement.

Making a family law agreement saves time, money, and stress. It allows couples to keep control of important decisions that affect their family.

Before signing a family law agreement, each spouse should get legal advice. They should see separate lawyers about what the agreement says.

When a relationship breaks down

Separation

Every year in BC, thousands of married and unmarried spouses stop living together as a couple. This is called separation.

Spouses are separated when one or both people:

• decide their relationship is over,
• tell the other person their decision, and
• act like the relationship is over.

Even if a couple continues to live in the same home, they can be considered separated if they don’t share things like meals, a bedroom, and social activities.

Spouses don’t need to agree to separate. They also don’t need to sign any papers, see a lawyer, or go to court to be separated.

Decisions to make

When a couple separates, they must make many decisions. For example:

• Does one person need financial help from the other? This is called spousal support. Can the other person afford to pay it? If so, how much can they afford to pay and for how long?
• Who will stay in the family home? Can everybody still live there or does someone need to move out?
• How will property be divided? How will debts be shared?
• If there are children, where will they live? How will decisions about their care be made? How will the parents share time with the children?
• Does child support need to be paid? If so, which parent should pay child support and how much?

Sponsorship breakdown

A spouse may be sponsored to come live in Canada as a permanent resident. If they separate from their sponsor, they may worry whether they can stay in Canada. They can. Their sponsor can’t make them leave the country. And the sponsor doesn’t have the right to keep the couple’s children or property.

In their booklet Sponsorship Breakdown, Legal Aid BC explains what happens when an immigration sponsorship breaks down.

Divorce

For a married couple to end their marriage, they must follow a legal process called divorce. (If the marriage wasn’t valid, they can apply for an annulment.)

Getting a divorce involves filling out forms and filing them with the BC Supreme Court. A judge looks over the documents. They will decide whether to grant a divorce.

To apply for a divorce, a spouse must have lived in BC for at least 12 months. They don’t need their spouse’s permission to apply. But they have to show their marriage has broken down. A spouse can do this by showing any of these things:

• that the spouses have lived separately for at least one year
• that their spouse has committed adultery
• that their spouse abused them physically or mentally (called cruelty under the law)

Someone can apply for a divorce in BC even if they were married in another country. They will need to show proof they were legally married — such as by providing their original marriage certificate.

Some cultures have their own divorce ceremony. But a couple is not legally divorced in Canada unless they have a court order for divorce from Canada or another country.

For more on the requirements to get a divorce and the process involved, visit dialalaw.ca.

Decisions about children

When parents separate, they must work out the details of how their children will be cared for.

Parenting arrangements

A child’s parents can make arrangements to share parental responsibilities and parenting time.

Parental responsibilities include making decisions about day-to-day care. It also includes making decisions about important aspects of the child’s life. This includes where they go to school, how they’re treated when they get sick, and if they’ll be raised in a religion. When parents separate, parental responsibilities can be shared or be given to just one parent.

Parenting time is the time that a parent spends with a child. During parenting time, a parent is responsible for the care of the child and making day-to-day decisions.

Contact

Contact with a child refers to the time that a person who is not a guardian spends with the child. For example, grandparents, stepparents, and others who are important to the child may have contact with the child.

Best interests of the child

If parents can’t agree about the care of their children, they can ask a court to decide. When making decisions like these, courts only consider the best interests of the children. Factors that go into this include:

• the child’s health and emotional well-being
• what the child wants and needs
• who cared for the child in the past
• whether there is a history of family violence
• what the parents are capable of (each one’s ability to carry out their responsibilities for the child)

Child support

Parents are legally responsible for financially supporting their children. This is true even if one parent doesn’t see or take care of the children.

Child support is money paid by one parent to the other parent. It’s paid after separation to help cover the costs of raising the children.

The parent with whom the child lives most of the time is entitled to receive child support from the other parent. If a child spends the same amount of time with both parents, the parent with the higher income usually has to pay child support.

Child support is calculated using rules called the Child Support Guidelines. These rules are based on the income of the parent who must pay support and the number of children they have needing support.

Spousal support

The breakup of a relationship can leave spouses on an unequal financial footing. A spouse who’s struggling moneywise may ask the other for help. This is called spousal support. It’s meant to help a spouse after separation with living expenses and with becoming financially independent.

Many factors determine whether a spouse can get spousal support. These include the length of the relationship, difference in incomes, and extent to which the relationship left one spouse economically disadvantaged.

Family property and debt

When a relationship ends, spouses often have to deal with their property and debt. They have to figure out who gets what and who pays for which debts.

BC family law spells out how property and debt are dealt with for couples who are married or who are in a marriage-like relationship for two years or more.

When their relationship ends, the spouses are presumed to keep property they brought into the relationship and to share in property they acquired during their relationship. Unless otherwise agreed, the law presumes that all family property and family debt is divided equally.

A court can order that family property and debt be divided unequally if it would be significantly unfair to divide it equally.

Moving after separation

After separation, one spouse may want to move to a new place. For couples who have a child together, if the move would significantly affect the child’s relationship with other important people in their life, it’s called a relocation. This usually means moving a long distance: to another province or country, or another community in BC.

The law sets out a process that must be followed. A spouse with a parenting order or agreement who wants to move generally must give written notice to the other guardian of the child, and to other people who have contact with the child. A guardian who doesn’t want the move to happen can object by making an application to court. In deciding whether or not to allow a move, a judge will look at the child’s best interests. Legal Aid BC has more on the process of relocation at family.legalaid.bc.ca.

Abuse and staying safe

Family violence

Family violence is any kind of abusive behaviour used to get power and control over a family member. It can be intentional or unintentional. It can happen during a relationship or after it ends.

Family violence includes physical abuse (such as hitting a partner or child). It also includes sexual, psychological, and emotional or verbal abuse. It includes threats and harassment.

If someone is at risk of family violence, they may need to get a protection order from the court. A protection order is meant to protect a person and their children from violence carried out by another family member. It can stop the family member from making contact and from visiting the family home or a workplace.

If the family member does not follow the protection order, the police can help. They can arrest and charge the family member with a criminal offence.

For more information, including key supports for those experiencing family violence, see dialalaw.ca. As well, Legal Aid BC offers a factsheet series, Live Safe, End Abuse.

When children need protection

Sometimes parents don’t take care of their children. Maybe they leave the children alone, or hurt them, or don’t give them enough food. This is child abuse.

If you are aware of a possible case of child abuse, the law says you have to report it to the BC government. You can call their provincial screening line at 1-800-663-9122 at any time of the day or night.

If a child protection worker thinks a child is in danger, they can remove the child from the home and place them in a safe place, such as the home of a relative.

When a child is removed, the worker and the parents have to go to court. The judge will hear from the worker and the parents and then decide what happens to the child.

There are some differences in the process for Indigenous children and families. For example, the child protection worker must take steps to protect the child's Indigenous identity and family ties, and a representative of the child’s Indigenous community will become involved. This process is evolving as the BC government has recognized the rights of Indigenous communities to make laws and provide their own child and family services.

For more on child protection, see the Legal Aid BC booklets on Parents’ Rights, Kids’ Rights and If Your Child Is Taken, as well as dialalaw.ca. Legal Aid BC has information for Indigenous Peoples about child and family rights at aboriginal.legalaid.bc.ca.

Resolving family law issues

Sometimes separating couples can’t agree on how to deal with their family issues. They might think going to court is their only option. Sometimes that’s true. For example, if someone is violent or is threatening to take the children out of town.

But most family law problems can be resolved without going to court.

Resolving issues out of court

Among the options to sort out family issues outside the courtroom are:

• Mediation. The separating couple meets with a trained, neutral person called a mediator. The mediator can help the couple talk to each other and agree on their issues. The mediator doesn’t take sides or force solutions on people. They don’t make any of the decisions. They work to help the couple make decisions both can live with.
• Collaborative negotiation. The spouses each hire a specially-trained lawyer who practises collaborative negotiation. This is a confidential negotiation process where all involved agree to do everything possible to reach a settlement without going to court.
• Arbitration. The spouses hire a trained, neutral person called an arbitrator. The arbitrator makes a decision resolving the legal issues at an arbitration. Hiring an arbitrator is like hiring a private judge. An arbitrator’s decision is binding and just as enforceable as a court order.

Going to court

Couples who can’t agree on their family issues may have to start a court action. If so, here are some things they can expect during the process:

• Exchange of information. The law requires each spouse to provide the other with "full and true information" so they can resolve their dispute. The court rules set out what information must be provided.
• Meetings to discuss options. The court process focuses on helping spouses resolve as many of their issues as possible without having a trial. Parties meet with a judge early in the process to see if it’s possible to reach an agreement.
• A temporary solution. In some cases, one or both spouses may need a temporary solution for issues, such as support payments or a decision about who lives in the family home. Either spouse can apply to the court for what is called an interim order. An interim order is for a limited time.

If issues remain unresolved, there will be a trial in court. A judge listens to the evidence presented and makes decisions about the issues. The judge puts the decisions into a final order. Both spouses must do what the court order says.

To learn more about BC’s legal system, visit Legal Aid BC’s website at family.legalaid.bc.ca.

Learning about the Law © People's Law School is, except for the images, licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence.