Difference between revisions of "Learning about Family Law"

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{{DEMOWARNING}}
{{REVIEWEDPLS | reviewer = [[People's Law School]]|date= February 2023}}{{Learning about the Law Wikibook TOC}}{{Law-Related ESL Badge
{{Learning about the Law Wikibook TOC}}  
|lessonname= Elder Law Lesson Module}}
Family law is the area of law that deals with marriage, relationships and children. In this section, you will learn about:
Family law is the area of law that deals with relationships, marriage, and children.  
*Being married or in a marriage-like relationship,
*Getting separated,
*Getting divorced,
*Making an agreement ,
*Mediation to help reach an agreement,
*Family Justice Counsellors,
*Collaborative family law,
*Finalizing your agreement,
*Caring for and making decisions for children,
*Child’s best interest,
*Child support,
*Spousal support,
*Dividing family property,  
*Moving with a child,
*Parents can get help,
*Protection from violence in the family,
*Separation and sponsorship,
*Going to court,
*When children need protection.
The two laws in BC that you may need to know
about are:
*''Family Law Act''. This is a provincial law that applies to all married and common-law couples.
*''Divorce Act''. This is a federal law that applies to married spouses only.


==Rights and responsibilities==
{{PLSTipsbox
When you are married to someone, or living with someone, the family law says you are a spouse. As a '''spouse''', you have legal rights and responsibilities about caring for children and caring for each other. A spouse is each person who is in a same-sex or opposite-sex relationship. There are three kinds of living arrangements in which you can be a spouse.
| text = For updated and in-depth information on family law in BC, visit [https://dialalaw.peopleslawschool.ca/category/families/ dialalaw.ca].
==Marriage and marriage-like relationships==
}}
When you are married to someone or living with someone, the family law says you are a '''spouse'''. A spouse is each person who is in a same-sex or opposite-sex relationship.
 
If you have a child together you have a responsibility to support that child. One parent may also be responsible for the support of the other parent.  
==Family relationships==
There are three kinds of spouses who have legal rights and responsibilities about caring for children and each other. The three kinds of spouses are:
===The laws in play===
#People who are married. To be legally married, you must have a religious or civil marriage ceremony. After that, you stay married until one partner dies or until the marriage is legally ended by a divorce.
[[File:Learning about the Law - Family Law.jpg|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.istock.com</span>]]
#People who are not married but have lived together in a marriage-like relationship for two years or more. Many people call a marriage-like relationship a “common-law” relationship. <br>It is not illegal to live in a common-law relationship while you or the other person is still legally married to someone else. A common-law relationship ends when you begin to live apart. <br>No matter how long you live together in a common-law relationship, you are not married under the law.  
 
#People who are not married but have lived in a marriage-like relationship for less than two years and have a child together If you have a child together you have a responsibility to support that child. One parent may also be responsible for the support of the other parent.
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 [https://family.legalaid.bc.ca/aboriginal-people 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.  


==Getting separated==
Couples can make an agreement at any time. They can make one before moving in together, while living together, or when they separate.  
Every year in BC, thousands of married and common-law couples stop living together. This is called '''separation'''.
There is no such thing as a “legal separation.” If you’re married or in a common-law relationship, you become separated as soon as you and your spouse start living apart from each other with the '''intention''' of separating.  


You don’t have to see a lawyer or go to court to be separated.  
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.  


You might still live in the same house to save money, but you are usually considered separated if you don’t share things like meals, a bedroom, and social activities. You don’t need your spouse’s permission to separate.
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'''.  


==Getting divorced==
Making a family law agreement saves time, money, and stress. It allows couples to keep control of important decisions that affect their family.  
For couples who have been legally married, '''divorce''' is the only way to legally end the marriage.
You apply for a divorce by filling out documents and filing them with the BC Supreme Court. You don’t need your spouse’s '''permission''' to apply for a divorce.
The only legal reason for divorce is "marriage breakdown."
You can apply for a divorce saying you have "marriage breakdown" if:
*you or your spouse have lived separately for one year,  
*you or your spouse has committed '''adultery''', or
*you were treated by your spouse with physical or mental cruelty.
You can apply for a divorce in BC even if you were married in another country. You will require proof that you were legally married, and that you or your spouse lived in BC for the 12 months before you apply for divorce.  
Canada recognizes the following as proof of marriage from other countries:
*Marriage certificate
*Marriage registration
*Certified copies of marriage documents
Some cultures have their own divorce ceremony, but you are not legally divorced in Canada unless you have a '''court order''' for divorce from Canada or another country.  


If you and your spouse agree to get a divorce, the judge reviews the documents you filed with the court.  
Before signing a family law agreement, each '''spouse''' should get legal advice. They should see separate lawyers about what the agreement says.


If you have children, the judge will want to see how you have both agreed to care for them and support them.
==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'''.


==Making an agreement==
Spouses are separated when one or both people:
An agreement is a written '''contract''' that describes a couple’s decisions about the legal issues in their relationship.
* decide their relationship is over,
Couples can make agreements at any time:
* tell the other person their decision, and
*Before they move in together.
* act like the relationship is over.  
*While they’re living together.
*When they separate.  


An agreement you make before you move in together or while you’re living together includes your decisions about:
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.  
*who owns what,
*how much money each of you will put in to run the household,  
*if you will have a joint household credit card or separate individual credit cards,
*how you will use and look after the things you buy together, and  
*who will pay debts.  


An agreement you make when you separate includes your decisions about parenting, support and property.
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.  
For example, it describes:
*Who the children will live with.
*How parents will spend time with the children.
*How parents will support the children.
*Who will stay in the home or apartment.
*How you will divide the things you own.  


You and your spouse can make an agreement with each other about these decisions. Or you can go to court and ask the court to decide what should happen.
====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?


It’s best if you can settle your family law issues without going to court. Making an agreement saves time, money, and stress. It allows you to keep control of important decisions that affect your family.  
====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.


Couples can often agree by talking together. But when you are separating you may find it difficult to agree.
In their booklet [https://legalaid.bc.ca/publications/pub/sponsorship-breakdown ''Sponsorship Breakdown''], Legal Aid BC explains what happens when an immigration sponsorship breaks down.
You can get help to come to an agreement.


==Mediation==
===Divorce===
Mediation is a process where you and the other person ask someone who has special training to listen to what both of you have to say, and help you come to an agreement. The person with this special training is called a mediator.  
{{PLSStorybox
| image = [[File:Headshot_-_Learning_about_the_Law_-_Neil_-_2023.png|link=]]
| text      = “Marianne and I separated a few months ago. I thought we needed to do something to get a legal separation, like sign some papers or go to court. But a lawyer told me we don’t have to do anything. As long as one of us wants to end the relationship, tells the other, and acts like our relationship is over, we are separated. Once we’ve been separated for at least a year, one or both of us can apply to court for a divorce. In the meantime, we can make a family law agreement to settle our issues.” <br>– Neil, Salt Spring Island, BC
}}


A mediator can help you and your spouse work together to solve problems.
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'''.)
*A mediator encourages you and your spouse to listen to each other and helps you come up with ideas for resolving your issues.  
*A mediator does not take sides or force solutions on you. A mediator does not make any of the decisions. You and your spouse make the decisions.
*Through the mediation process, you can find solutions that are acceptable to both of you.  


If you have children, the mediator will help you reach an agreement that is in their best interests.
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 find a mediator, contact: Mediate BC Society (Family Mediation Services)
<blockquote>
Phone: 1-604-684-1300 local 23
<br>
Toll-Free: 1-855-660-8406
<br>
[mailto:fms@mediatebc.com fms@mediatebc.com]
<br>
[http://www.mediatebc.com www.mediatebc.com]
</blockquote>


==Family Justice Counsellors==
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:
Couples can get help from '''family justice counsellors'''. Family justice counsellors are government employees who work at Family Justice Centres across the province. Sometimes they are located in the local courthouse.
* 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)


Family Justice Centers provide free services for families and couples with low incomes. They can help you and the other parent reach an agreement.  
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.  


To contact a family justice counsellor, call Service BC at:
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.
*604-660-2421 (Greater Vancouver),
*250-387-6121 (Victoria), or  
*1-800-663-7867 (no charge, elsewhere in BC).


==Collaborative family law==
For more on the requirements to get a divorce and the process involved, visit [https://dialalaw.peopleslawschool.ca/requirements-for-divorce-and-annulment/ dialalaw.ca].
Couples can agree to work together with lawyers who practise collaborative family law to find solutions that work for both spouses.  


In collaborative family law, you and your spouse each have a lawyer. You and the lawyers participate in a series of meetings to try to come to an agreement.  
===Decisions about children===
When parents separate, they must work out the details of how their children will be cared for.  


To find a collaborative family law lawyer through the Lawyer Referral Service, see the [[Find Out More in Learning about the Law|Find out more - Family Law]] section.
====Parenting arrangements====
A child’s parents can make arrangements to share '''parental responsibilities''' and '''parenting time'''.  


==Finalizing your agreement==
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.  
When you come to an agreement, you write down what you’ve agreed to and both of you sign it.  


Do not sign any agreement if you feel any pressure to do so. If your agreement deals with property, you must have your signatures witnessed by at least one other person.  
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.  


To have your signature witnessed, ask a third person to:
====Contact====
*watch you sign the agreement, and  
'''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.  
*also sign the agreement.  


It’s also a good idea for both of you to get legal advice about what goes into your agreement and how it’s written.
====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)


To protect your legal rights and those of your children, you should each see a different lawyer.
===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.  


You also need to see a lawyer if you’ve already signed an agreement and have questions about it.  
'''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.  


To find a family law lawyer through Lawyer Referral, see the [[Find Out More in Learning about the Law]] section.
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.  


==Care and decisions for children==
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.  
The BC ''Family Law Act'' changed in 2013. The law uses new terms to describe how parents care for and make decisions for children:
*Guardians & guardianship
*Parental responsibilities
*Parenting time
*Parenting arrangements


This section looks at what these terms mean in BC.
{{PLSStorybox
| image = [[File:Headshot_-_Learning_about_the_Law_-_Nadia_-_2023.png|link=]]
| text      = “When we separated, my husband agreed the kids should live with me. But we couldn’t agree on money for the kids. So we went to a family justice counsellor. They told us child support is a child’s right and that my husband has to pay money to support the children, based on his income. The counsellor helped us make an agreement.” <br>– Nadia, Vancouver, BC
}}


==Guardians and guardianship==
===Spousal support===
Parents are '''guardians'''. They have '''guardianship''' of their children. This means they are responsible for caring for and making decisions for their children. Parents who live together after their child’s birth are both the child’s guardians.  
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.  


If the parents separate, they are both the child’s guardians, unless an agreement or court order removes one of them as a guardian.
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.  


If a parent never lived with the child, then that parent is not a guardian unless he or she:
===Family property and debt===
*regularly cares for the child, or
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.  
*is appointed as a guardian by a court order or agreement with the child’s other guardian(s).  


People other than parents can sometimes be guardians, but they must have a court order naming them as guardians.  
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.


A guardian may name someone to be a stand-by guardian just in case he or she becomes unable to look after the child. A guardian may also name someone who will become the child’s guardian if the guardian dies.
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'''.
===Parental responsibilities===
Parents have ''parental responsibilities''. These include making decisions about day-to-day care, as well as larger decisions about:


*Health care
A court can order that family property and debt be divided ''unequally'' if it would be significantly unfair to divide it equally.
*Education
*Religious upbringing
*Extracurricular activities and  
*Where the child lives, etc.  


When parents live together, they share these responsibilities as guardians. Parents need an agreement or court order if they want to change this arrangement.
===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.  


Parents who separate may continue to share parental responsibilities as guardians. Or one guardian may take on one or more of the parental responsibilities.
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 [https://family.legalaid.bc.ca/children/parenting-guardianship/moving-and-travelling-your-children/can-you-move-or-without-your 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 [https://dialalaw.peopleslawschool.ca/family-violence/ dialalaw.ca]. As well, Legal Aid BC offers a factsheet series, [https://family.legalaid.bc.ca/publications/live-safe-end-abuse ''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.
   
   
Guardians consult with each other when making decisions, unless their agreement or court order says that only one of them is responsible for that particular decision.
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 [https://legalaid.bc.ca/publications/pub/parents-rights-kids-rights ''Parents’ Rights, Kids’ Rights''] and [https://legalaid.bc.ca/publications/pub/if-your-child-taken ''If Your Child Is Taken''], as well as [https://dialalaw.peopleslawschool.ca/child-protection/ dialalaw.ca]. Legal Aid BC has information for Indigenous Peoples about child and family rights at [https://aboriginal.legalaid.bc.ca/ 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.
 
{{PLSStorybox
| image = [[File:Headshot_-_Learning_about_the_Law_-_Danny_-_2023.png|link=]]
| text      = “My spouse and I made a separation agreement. We clashed on a lot of things, so we decided to get help. We contacted a mediator to work out parenting arrangements, support, and property division. I’m glad we did this without having to go to court. We saved money, and we both understand what our rights and obligations are.” <br>– Danny, Squamish, BC
}}


===Parenting time===
===Going to court===
===Parenting arrangements===
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.


==Contact with the child==
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.
==Child's best interest==
==Children's property==
==Child support==
===A child should benefit===
==Child Support Guidelines==
===What if a parent refuses to pay child support?===
==Spousal support==
===What if a spouse refuses to pay spousal support?===
==Dividing family property==
==Moving with a child==
==Parents can get help==
===Parenting After Separation program===
==Protection from violence in the family==
==Separation and sponsorship==
==Going to court==
===Exchanging information===
===Meeting with a child support clerk===
===Meeting with a family justice counsellor===
===Meetings to discuss options for settling your case===
===A temporary solution===
====If you and your spouse can agree====
====Ig you and your spouse cannot agree====
==When children need protection==


{{REVIEWED | reviewer = [[People's Law School]], 2013}}
To learn more about BC’s legal system, visit Legal Aid BC’s website at [https://family.legalaid.bc.ca/bc-legal-system family.legalaid.bc.ca].


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__NOGLOSSARY__

Latest revision as of 23:37, 13 March 2023

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.


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