Learning about Family Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Parenting arrangements

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

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

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

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.

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Child support

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

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

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?

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

One spouse may need to ask the other for spousal support when they separate. The purpose of spousal support is to help with living expenses upon separation. Spousal support is usually paid for a limited period of time.

Spouses may make an agreement about spousal support. Or the spouse who wants support can apply to the court.

You must apply for spousal support within two years after you got an order for a divorce. If you were living in a common-law relationship, you must apply within two years of the date on which you separated.

If you are applying for spousal support, the court will consider:

• If you worked outside the home during the marriage or relationship.
• How long you and your spouse lived together.
• If you are able to support yourself.
• If you are or were at home with the children.
• Whether you earn a lot less than your spouse.
• If your spouse has the ability to pay.

What if a spouse refuses to pay spousal 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 spouse is not paying the money the judge said must be paid to support a spouse, or the money that he or she agreed in writing to pay.

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Dividing family property

Unless you and the other spouse have an agreement that says something else, the rule is that all family property and family debt is divided equally.

The rule is the same for married people and for people in a common-law relationship of two years or more.

Family property is everything either you or your spouse own together or separately on the date you separate. This includes such things as:

• The family home
• RRSPs
• Investments
• Bank accounts
• Insurance policies
• Pensions and
• An interest in a business

Family debts are debts you take on during your relationship that:

• you still owe on the date you separate, or
• you take on after your separation date to maintain family property.

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

Some things are not family property. They are excluded from the rule that the property must be divided equally. For example, these things are excluded:

• Property one spouse owned before the relationship started,
• Gifts and inheritances given to one spouse during the relationship.

When children need protection

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

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.

The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

In family law, the quality of an unmarried couple's relationship that demonstrates their commitment to each other, their perception of themselves as a couple, and their willingness to sacrifice individual advantages for the advantage of themselves as a couple; a legal requirement for a couple to be considered spouses under the Family Law Act without marrying. See "cohabitation," "marriage," and "spouse."

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

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

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

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

The legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage" and "marriage, validity of."

In family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however, it is possible to be separated but still live under the same roof. See "divorce, grounds of."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

A legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits, and obligations. See also "conjugal rights," "consortium," and "marriage, validity of."

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

A married person's voluntary sexual intercourse with a person other than their spouse, also known as cheating, playing the field and fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the spouse complaining of the adultery can prove that the adultery occurred and that they have not consented to or forgiven the adulterous act. See "collusion," "condonation," and "divorce, grounds of."

In family law, the physical, verbal, emotional, or mental abuse of one married spouse by the other. Proof of cruelty is grounds for an immediate divorce, providing that the other spouse has not forgiven the cruelty. See "condonation" and "divorce, grounds of."

(1) Information which establishes or tends to establish the truth of a fact, or (2) the conclusion of a logical argument. See "evidence" and "premises."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

An agreement between two or more people, giving them obligations towards each other that can be enforced in court. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must generally be exchanged between the parties to the contract.

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

A dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

(1) A person charged with the legal care of someone under a legal disability. (2) A term under the Family Law Act referring to a person, including a parent, who is responsible for the care and upbringing of a child through the exercise of parental responsibilities. See "disability," "parental responsibilities" and "parenting time."

A term under the Family Law Act which describes the various rights, duties, and responsibilities exercised by guardians in the care, upbringing, and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "decision-making responsibility" and "guardian."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

Under the Family Law Act, a term which describes the time a guardian has with a child and during which is responsible for the day-to-day care of the child. Under the Divorce Act, a term which describes the time a spouse has with a child and during which is responsible for the day-to-day care of the child. See "guardian" and "spouse."

A term under the Family Law Act which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time."

In family law, an antiquated term used by the old Divorce Act to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. Replaced in the new Divorce Act with the term decision-making responsibility." See "access," "decision-making responsibility" and "parenting time."

Under the old Divorce Act, the schedule of a parent's time with their children under an order or agreement, replaced with "parenting time" and "contact" in the new Divorce Act. Access usually referred to the schedule of the parent with the least amount of time with the child. See "contact," "custody" and "parenting time."

A person who holds property in trust for the benefit of another person. See "trust."

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

A legal obligation to do or not do a thing, whether by legislation, the common law, or an order of the court. For example, the Criminal Code imposes a legal duty on parents to provide the necessities of life to their children until they turn 16, while the Family Law Act imposes a duty on parents to make decisions in the best interests of their children. See "duty."

A scientific test performed to determine the biological parentage of a child, usually by the genetic testing of the blood or saliva of the alleged parents and the child.

A regulation to the federal Divorce Act, adopted by every province and territory except Quebec, that sets the amount of child support a parent or guardian must pay, usually based on the person's income and the number of children involved.

The spouse of a person who has children from a previous relationship. A stepparent may qualify as a "parent" for the purposes of issues relating to child support and decisions about the care and control of the stepchildren under both the Divorce Act and the Family Law Act. See "parent" and "spouse."

In law, (1) a lawyer's bill to their client or a statement, or (2) a person's recollection of events.

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

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

In family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property."

A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."