Difference between revisions of "Learning about Family Law"

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==Child Support Guidelines==
==Child Support Guidelines==
Parents must follow rules called the '''Child Support Guidelines'''. The guidelines help set a fair amount of support for children. The ''Child Support Guidelines'' are based on the income of the parent who must pay support.
The ''Child Support Guidelines'' considers such things as how much money the parent makes and how many children need support. The guidelines make sure that children continue to benefit from the financial means of both parents.
If you and the other parent cannot agree about child support amounts, a mediator can help you. To find a mediator, see [[Find Out More in Learning about the Law]] section.
While parents must follow the ''Child Support Guidelines'', the rules are different for stepparents. They pay a child support amount based on:
*the length of time the child lived with the stepparent, and
*what the child’s living standard was while living with the stepparent.
===What if a parent refuses to pay child support?===
===What if a parent refuses to pay child support?===
The provincial government has a free program called the Family Maintenance '''Enforcement''' Program.
The people who work in this program can help if a parent is not paying the money the judge said must be paid to support the children, or the money that he or she agreed in writing to pay.
If a parent does not pay child support, the Family Maintenance Enforcement Program may take the money directly from the parent’s pay cheque or bank account. Other things that may happen if a parent refuses to pay include:
*He or she may lose his or her driver’s licence.
*The Canadian government may take away his or her passport.
==Spousal support==
==Spousal support==
===What if a spouse refuses to pay spousal support?===
===What if a spouse refuses to pay spousal support?===

Revision as of 01:27, 15 January 2014

Family law is the area of law that deals with marriage, relationships and children. In this section, you will learn about:

  • 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[edit]

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.

Marriage and marriage-like relationships[edit]

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. 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:

  1. 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.
  2. 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.
    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.
    No matter how long you live together in a common-law relationship, you are not married under the law.
  3. 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.

Getting separated[edit]

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.

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.

Getting divorced[edit]

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.

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

Making an agreement[edit]

An agreement is a written contract that describes a couple’s decisions about the legal issues in their relationship. Couples can make agreements at any time:

  • Before they move in together.
  • 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:

  • 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. 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.

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.

Couples can often agree by talking together. But when you are separating you may find it difficult to agree. You can get help to come to an agreement.

Mediation[edit]

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.

A mediator can help you and your spouse work together to solve problems.

  • 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. To find a mediator, contact: Mediate BC Society (Family Mediation Services)

Phone: 1-604-684-1300 local 23
Toll-Free: 1-855-660-8406
fms@mediatebc.com
www.mediatebc.com

Family Justice Counsellors[edit]

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.

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

To contact a family justice counsellor, call Service BC at:

  • 604-660-2421 (Greater Vancouver),
  • 250-387-6121 (Victoria), or
  • 1-800-663-7867 (no charge, elsewhere in BC).

Collaborative family law[edit]

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.

To find a collaborative family law lawyer through the Lawyer Referral Service, see the Find out more - Family Law section.

Finalizing your agreement[edit]

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.

To have your signature witnessed, ask a third person to:

  • watch you sign the agreement, and
  • 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.

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

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

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

Care and decisions for children[edit]

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.

Guardians and guardianship[edit]

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.

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

If a parent never lived with the child, then that parent is not a guardian unless he or she:

  • regularly cares for the child, or
  • 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.

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.

Parental responsibilities[edit]

Parents have parental responsibilities. These include making decisions about day-to-day care, as well as larger decisions about:

  • Health care
  • 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.

Parents who separate may continue to share parental responsibilities as guardians. Or one guardian may take on one or more of the parental responsibilities.

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.

Parenting time[edit]

If one of the guardians no longer lives with the children, that guardian has parenting time with the children.

Parenting arrangements[edit]

The arrangements between guardians for sharing parental responsibilities and parenting time are called parenting arrangements. Parenting arrangements can be recorded in an agreement or a court order.

For example: When Susan and Joseph separated they made a written agreement that describes their parenting arrangements:

  • The children will live with Susan during the week. She will make the decisions about the children’s daily care when the children are with her.
  • The children will have parenting time with Joseph every weekend. He will make the decisions about the children’s daily care when the children are with him.
  • Susan and Joseph will continue to consult with each other about the larger decisions such as the children’s education and health care.

Contact with the child[edit]

Contact with the child is another important new term in family law. Contact with the child refers to the time that a person who is not a guardian spends with the child. A parent who is not the child’s guardian would have contact.

Grandparents, step-parents, and other people who may be important to the child can also apply to court to get contact with a child. The law recognizes that the child has a right to maintain these important relationships when parents separate.

People who are not guardians don’t have parental responsibilities, so they can’t make decisions about the child’s life, even during contact.

All guardians and the person with contact can agree to the contact, or the contact may be given in a court order. In some cases, there may be conditions on contact, such as having someone else supervise visits with the child.

Important Note: If you get a divorce, you will find that some different words are used. The federal Divorce Act uses the word “custody” to describe daily care of the child and decision-making for the child. It uses the word “access” to describe contact with the child.

Child's best interest[edit]

All decisions about parenting arrangements and contact in court orders or agreements must be based on the child’s best interests. These include:

  • what the child wants and needs,
  • who cared for the child in the past,
  • whether there is a history of family violence, and
  • what the parents are capable of (each one’s ability to carry out his or her responsibilities for the child).

When you are deciding your parenting arrangements after a separation, the law says you must only consider the best interests of the child. If you go to court, the judge can only consider the best interests of the child in making decisions about parenting.

Children's property[edit]

A child’s guardian is not automatically the guardian of the child’s property (including money). Guardians can manage children's property if it is a certain type of property or below a certain value. If not, a trustee is responsible for managing the child’s property. This is complicated. You would need to talk to a lawyer.

To find a family law lawyer through the Lawyer Referral Service, see the Find out More section.

Copyright www.shutterstock.com

Child support[edit]

The money one parent pays to the other parent to help provide for the child’s daily needs is called child support. Each parent has a legal responsibility to support the child, until the child is at least 19.

Parents have a legal duty to support their children. Even if you have never lived with your child’s other parent, you have a legal responsibility to contribute to the support of your child.

If a man who has been named as the child’s father denies being the parent of the child, the court can order him to take a paternity test, also called a parentage test.

Stepparents and guardians who are not parents also have a duty to support the child. Parents have the primary responsibility to pay child support, then non-parent guardians, and then stepparents.

A child should benefit[edit]

The laws about child support are based on the idea that a child should benefit from both parents' ability to support him or her.

If a child is living with one parent, the other parent usually must pay support money. Even if a child spends equal or almost equal time with both parents, the parent with the higher income may have to pay child support to the other parent.

Child support, although paid to the other parent, is the legal right of the child. A parent cannot make an agreement saying that the other parent does not have to pay child support.

One parent cannot prevent the other parent from having contact with the child because he or she is not paying child support payments.

Child Support Guidelines[edit]

Parents must follow rules called the Child Support Guidelines. The guidelines help set a fair amount of support for children. The Child Support Guidelines are based on the income of the parent who must pay support.

The Child Support Guidelines considers such things as how much money the parent makes and how many children need support. The guidelines make sure that children continue to benefit from the financial means of both parents.

If you and the other parent cannot agree about child support amounts, a mediator can help you. To find a mediator, see Find Out More in Learning about the Law section.

While parents must follow the Child Support Guidelines, the rules are different for stepparents. They pay a child support amount based on:

  • the length of time the child lived with the stepparent, and
  • what the child’s living standard was while living with the stepparent.

What if a parent refuses to pay child support?[edit]

The provincial government has a free program called the Family Maintenance Enforcement Program.

The people who work in this program can help if a parent is not paying the money the judge said must be paid to support the children, or the money that he or she agreed in writing to pay.

If a parent does not pay child support, the Family Maintenance Enforcement Program may take the money directly from the parent’s pay cheque or bank account. Other things that may happen if a parent refuses to pay include:

  • He or she may lose his or her driver’s licence.
  • The Canadian government may take away his or her passport.

Spousal support[edit]

What if a spouse refuses to pay spousal support?[edit]

Dividing family property[edit]

Moving with a child[edit]

Parents can get help[edit]

Parenting After Separation program[edit]

Protection from violence in the family[edit]

Separation and sponsorship[edit]

Going to court[edit]

Exchanging information[edit]

Meeting with a child support clerk[edit]

Meeting with a family justice counsellor[edit]

Meetings to discuss options for settling your case[edit]

A temporary solution[edit]

If you and your spouse can agree[edit]

Ig you and your spouse cannot agree[edit]

When children need protection[edit]

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by People's Law School, 2013.



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