Introduction to Family Law in British Columbia

This section offers a short introduction to family law in British Columbia and the ways that family law problems are resolved. It's written in easy-to-understand language and is meant for people who have never had to deal with the legal system before and for people who are new to Canada.

This section is meant to be read as a whole, from start to finish. The main chapters of this wikibook go into each subject in a lot more detail. When you're done with this section, the chapter The Legal System has a more complete introduction to family law and dispute resolution in BC.

Here you will find an overview of common family law problems, the laws that deal with family law problems, the courts that deal with family law problems, and the other ways that family law problems are resolved. This section talks briefly about the law on the care of children, child support, spousal support, how property and debts are shared, separation and divorce, and family law agreements.

Introduction

When the people in a relationship break up, they may have to decide how a child will be cared for, how property should be divided, and whether someone needs extra money to help pay the bills. Family law, sometimes also called divorce law or the law on domestic relations, is the area of the law that deals with problems like these.

To understand how family law works in British Columbia, you need to have a basic understanding of the legal system, the law about family law problems, and how the courts apply the law when a couple can't agree about something. Since it isn't always necessary to go to court when there's a problem, you also need to know about negotiation, mediation and arbitration. These are other ways that people can solve their problems without going to see a judge.

Family law problems are resolved in one of two ways:

1. the adults involved bargain with each other and come up with a solution that they both agree to; or,
2. they can't agree and they have to ask someone else to come up with a solution, usually by going to court or to an arbitrator.

Going to court means that one or both people have or will start a court proceeding. (Court proceedings are also known as lawsuits, claims or actions.) Going to court is called litigation; trying to come up with an agreement without going to court is called negotiation. Mediation is a kind of negotiation. Arbitration is like going to a private court where you get to pick the judge.

There are two courts that handle almost all family law litigation in British Columbia: the Provincial (Family) Court and the Supreme Court. Each court has its own rules, its own forms, and its own process.

There are two main laws that apply to family law problems. A law, in this sense of the word, means a rule made by the government. (This kind of law is also called legislation or statute law.) These laws are the Divorce Act, made by the federal government, and the Family Law Act, made by the provincial government. Although the laws cover some of the same legal issues, each law also covers issues that the other doesn't. For some couples, both laws will apply; for others, only one of these laws will apply, probably the Family Law Act.

It's important to know that you don't have to go to court, no matter how bad your problem is. The only times you must go to court are when:

• you need a divorce,
• someone is threatening to do something serious, like take the children away,
• there is a risk of violence, or
• someone is threatening to hide, sell, or give away property or money.

If you don't have to deal with one or more of these issues, you can always try to negotiate a way of fixing the problem, to find a solution that you both agree with. Couples who need help negotiating sometimes hire someone else to help, someone who has special training helping people resolve problems and make deals, called a mediator. Mediators help to guide the negotiation process and encourage people to see different ways of solving the problem. Arbitration is an alternative to court when you can't reach an agreement no matter how hard you try.

Lawyers who mediate family law problems are called family law mediators, and have additional training in mediation apart from their training as lawyers. In the same way, lawyers who arbitrate family law problems are called family law arbitrators, and have additional training in arbitration apart from their training as lawyers. Because there are no rules about who can and who can't call themselves a mediator or an arbitrator, you should look carefully at the mediator's or arbitrator's credentials before you agree to use that person as your mediator or arbitrator.

Further reading
Chapters on:

• Introduction to the Legal System for Family Matters
• Resolving Family Law Problems out of Court
• Children in Family Law Matters, in particular the section on Parenting after Separation

Common family law problems

All sorts of people in all sorts of situations can have family law problems, including couples who live together and couples who don't, couples who are married to each other and couples who aren't, and couples who intended to have a child together and couples who didn't. In British Columbia, family law applies to same sex couples in exactly the same way that it applies to opposite-sex couples. Family law also applies when the family isn't a couple but includes more than two adults.

The sorts of problems adults can have when their relationship ends include deciding how the children will be cared for, whether support should be paid, and who will keep which property and which debt.

Family law problems about children include making decisions about:

• parenting time or custody, which includes deciding where the children will live for most of the time,
• parental responsibilities or custody, which includes deciding how parents or guardians will make decisions about important things in the children's lives, such as issues like health care and education, and
• parenting time, contact, or access, which are about deciding how much time each parent, and sometimes other people, will have with the children.

Support means money that one person pays another to help with that person's expenses. Family law problems about support include:

• child support, money that is paid to help with expenses for the children, like shelter, clothing, medical expenses, and food, and
• spousal support, money that is paid to help with a spouse's day-to-day living expenses, like rent, the phone bill and the electricity bill, and sometimes money that is paid to compensate a spouse for the effect of decisions about work and money made during the relationship.

When a couple have property, sometimes including when only one person has property, they have to decide if and how that property will be shared between them. In family law, the property married spouses and unmarried spouses share is called family property, generally only the property that accumulated during a relationship. Family property can include things like houses, bank accounts, businesses, and cars. It can also include RRSPs and pensions. Sometimes a couple also has to decide who will take responsibility for debts. Generally, only the debts that accumulated during a relationship will be shared between married spouses and unmarried spouses.

Married spouses also have to decide about whether they want to get divorced. Divorce is the legal ending of a marriage, and only a judge can make you divorced. Most married spouses whose relationship has ended want to get divorced, but it's usually a low priority. Couples who aren't married, including unmarried spouses, never need to get divorced.

All of these family law problems will be discussed in more detail later on.

As you can see, the sorts of family law problems a couple can have sometimes depends on what their relationship was like. In family law, there are four main types of relationship:

• Unmarried adults. Unmarried adults probably think of themselves as boyfriends and girlfriends. They may have lived together, but not for too long. Sometimes unmarried adults involved in a family law problem will have been together only for a very short while ― perhaps just long enough to make a baby.
• Unmarried spouses. Unmarried spouses are not legally married. Unmarried spouses have lived together in a loving ― or at least marriage-like ― relationship, and, for most purposes of the Family Law Act, must have lived together for at least two years. If they produce a child while living together, they become unmarried spouses even if they've lived together for less than two years.
• Married spouses. Married spouses have been legally married by a marriage commissioner or a religious official licensed to perform marriages, and their marriage has been registered with the government where they were married.
• Parents. Parents are people who have had a baby together, sometimes including people who helped as the donor of sperm, the donor of eggs, or as a surrogate mother. Parents may be unmarried adults, unmarried spouses, married spouses, or complete strangers. What matters is that they have a child.

Important changes
Under the changes to the Divorce Act that took effect on 1 March 2021, "custody" is now known as decision-making responsibility and "access" is now known as parenting time, for people who are or used to be married to each other, or as contact for other people.

Further reading
Chapters on:

• Children in Family Law Matters
• Child Support
• Spousal Support
• Property & Debt in Family Law Matters
• Family Relationships, in particular the sections on Marriage & Married Spouses and Unmarried Spouses

Resolving family law problems

If you have a family problem now, or might have one in the future, you have two ways to resolve that problem: you can talk to the other person and try make a decision about the problem together; or, you can ask someone else to make the decision for you. Really, there's also a third option. You could also walk away, refuse to deal with the problem, and wait to see what happens. This is usually a terrible way of dealing with family law problems.

If you want to try to make a decision about the problem together, you and the other adults involved in the problem will need to agree on a resolution and your decision will usually be written down in a formal way. Reaching an agreement usually requires negotiation. You can negotiate face to face, or do it through lawyers. Mediation is a kind of negotiation that uses a specially-trained person, a mediator, to help people talk to each other and find a resolution. Collaborative negotiation is a kind of negotiation that uses specially-trained lawyers, and sometimes also people who are experts about money or experts about children, who work together to help people talk to each other.

If you want to ask someone to make a decision about the problem, you can go to court or you can go to an arbitrator. If you litigate, you will start a public court proceeding managed by the rules of court that will conclude a few years later with a trial before a judge, if your family problem isn't resolved by an agreement before then. If you arbitrate, you will start a private process governed by rules you can help design that will conclude a few months later with a hearing before an arbitrator.

Court proceedings usually end with the judge's order. Arbitration proceedings end with the arbitrator's award. Negotiation usually ends with a settlement that is written down as a legal agreement, but if you can reach a deal in the middle of a court proceeding, the settlement might be written down as a consent order. If you negotiate a deal in the middle of an arbitration proceeding, the settlement might be written as a consent award. Orders, awards, and agreements are for family law problems that you have now. Agreements are also used to address family law problems that you might have in the future.

Further reading
Chapters on:

• Resolving Family Law Problems out of Court
• Resolving Family Law Problems in Court
• Family Law Agreements

Family law agreements

A family law agreement is a legal contract, like the contract you might have with your landlord or your employer, or the contract you might sign if you lease a car. Family law agreements are used to record people's settlement of the legal issues that they're dealing with when they make the agreement. They may also deal with issues that might come up in the future.

There are three kinds of agreement people can make about family law issues:

• living-togther or cohabitation agreements, agreements that people may make when they are living together or plan to live together,
• marriage agreements, which a couple may want if they are going to be getting married, and
• separation agreements, which married spouses or unmarried adults may make after their relationship ends.

Cohabitation agreements and marriage agreements are for people who are just starting a relationship. These sorts of agreements can talk about how the relationship will be managed (who will pay the bills, will there be a joint bank account or a joint credit card, or who will do what parts of the housework), but most often talk about what will happen if the relationship ends. These agreements are usually meant to stop people from fighting after a relationship ends by setting out who will get what, right from the start.

The law does not require that people make a cohabitation agreement or a marriage agreement when they start to live together or marry. You don't have to sign an agreement like this if you don't want to.

Cohabitation agreements and marriage agreements aren't for everyone. People who are bringing a lot of property, money, or children into a relationship may want a cohabitation agreement or a marriage agreement. People who don't have property or children, are young, and expect to have a long-term relationship may not need an agreement at all.

Separation agreements are made after a relationship has ended. They talk about how people have agreed to deal with things like the care of children, child support and spousal support, and how the family assets will be shared. Separation agreements don't have to cover all the family law problems people have. They can deal with just some of those problems and leave the rest for the court or an arbitrator to decide.

Normally, people who are thinking about a separation agreement talk about the issues and try to negotiate a resolution that they are both happy with. It is unusual, and perhaps unfair, for just one person to write a separation agreement without talking to the other people involved. You do not have to sign a separation agreement if you don't want to.

No matter what kind of family law agreement you have signed, each of the people involved in the agreement expect that the others will follow the agreement, and that the court will enforce the agreement if someone doesn't follow it. The court will generally respect an agreement that people signed willingly, as long as the agreement was fair and no one misled anyone else about something important, like money or property.

Further reading
The chapter on:

• Family Law Agreements

The courts of British Columbia

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. The Court of Appeal is the highest court in the province and the Provincial Court is the lowest. The Provincial Court and the Supreme Court are trial courts, which means that if the people involved in a court case (the parties or the litigants) can't solve a legal problem for themselves, the court can make decisions resolving those problems for them, after hearing from witnesses and considering the other evidence presented at a formal trial. The Court of Appeal is an appeal court, meaning that it doesn't hold trials, it just hears arguments about whether the decision of a trial court was correct or incorrect. Most family law litigation happens in the Provincial Court and the Supreme Court.

The branch of the Provincial Court that deals with family law is called the Provincial (Family) Court. Other branches of the Provincial Court include the Provincial (Youth) Court and the Provincial (Small Claims) Court. (When this resource talks about the Provincial (Family) Court, it will just say "Provincial Court.") The Provincial Court can deal with:

• guardianship of children under the Family Law Act,
• parental responsibilities, parenting time, and contact under the Family Law Act,
• child support,
• spousal support, and
• orders protecting people.

The Supreme Court can deal with all family law problems. On top of issues about the guardianship of children and the care of children, child support, and spousal support under the Family Law Act, this court can also deal with:

• divorce,
• custody and access under the Divorce Act,
• dividing family property and family debt, and
• orders protecting property.

The Supreme Court can also hear appeals of decisions made by the Provincial Court. The Court of Appeal only hears appeals of decisions made by the Supreme Court, including decisions made by the Supreme Court about appeals from the Provincial Court!

This chart shows which trial court can deal with which family law problem:

	Supreme Court	Provincial Court
Divorce	Yes
Care of children	Yes	Yes
Time with children	Yes	Yes
Child support	Yes	Yes
Children's property	Yes
Spousal support	Yes	Yes
Family property and family debt	Yes
Protection orders	Yes	Yes
Financial restraining orders	Yes

To get to court, you must start a court proceeding and tell the court what you want. In the Provincial Court, proceedings are started with a court form called an Application to Obtain an Order. In the Supreme Court, the court form is called a Notice of Family Claim. In the Provincial Court, a person who starts a court proceeding is called the applicant; in the Supreme Court, this person is the claimant.

Once a court proceeding has started, the people against whom the proceeding has been brought can answer the claims being made and make new claims of their own. In the Supreme Court, two court forms can be used: a Response to Family Claim and a Counterclaim. In the Provincial Court, this answer is called a Reply, and this single form includes parts for both answering the claims made, and making new counterclaims. In the Supreme Court and in the Provincial Court, a person answering a court proceeding is called the respondent.

Applicants and respondents (in the Provincial Court), and claimants and respondents (in the Supreme Court), are called the parties to the court proceeding.

After the respondent has filed a reply to the claim, any of the parties can ask the court to make an order about some or all of the issues raised in the court proceeding. An order is a decision of a judge that requires someone to do something or not do something. For example, a court can make an order that a child live mostly with one party, an order that one party not harass another party, or an order that one party have the family car.

Orders can be made by consent, which means that they are made with the agreement of the parties. If the parties can't agree on the terms of the order, they must go to a hearing before a judge and have the judge decide the terms of the order. There are two types of order: an interim order, which is any order made before trial; and, a final order, which is an order made at the end of a trial. A trial is the final hearing before a judge, where the parties present their arguments and evidence, and concludes the court proceeding.

If you don't like the order you get from the judge, you cans sometimes challenge the order before a higher level of court in a court proceeding called an appeal. An order of the Provincial Court is appealed to the Supreme Court. An order of the Supreme Court is appealed to the Court of Appeal. You cannot appeal an order that you agreed to without proof that you were somehow tricked into agreeing to the order.

Over time, the terms of an order may need to be changed. If there has been an important change in your circumstances or in the circumstances of the children since an order was made, you can go back to court and ask that the order be changed to suit the new circumstances. This is called applying to vary an order.

Further reading
Chapters on:

• Introduction to the Legal System for Family Matters, in particular the section on The Court System for Family Matters
• Resolving Problems in Court, in particular the sections on Starting a Court Proceeding in a Family Matter, Replying to a Court Proceeding in a Family Matter, and Interim Applications in Family Matters

The basic law

There are two kinds of law: laws made by the governments, called legislation, statutes, acts, and regulations; and, laws made by the courts. Laws made by the courts are known as the common law, precedent decisions, or case law. They come from the different proceedings that the courts have heard over hundreds of years, and the decisions the courts have made in those different proceedings.

Legislation is made by the federal government and the provincial government. The two pieces of legislation that are the most important for family law in British Columbia are the federal Divorce Act and the provincial Family Law Act. Each piece of legislation deals with different family law problems and applies to different kinds of relationships.

The Divorce Act only applies to people who are married or who used to be married to each other, including married people of the same sex. It covers:

• divorce,
• custody,
• access,
• child support, and
• spousal support.

The Divorce Act is going to change a lot in 2020. Among other things, the new Divorce Act will talk about parenting time and contact instead of access, and about decision-making responsibility instead of custody.

The Family Law Act applies to married spouses, unmarried spouses, parents, and unmarried adults who are neither married spouses nor unmarried spouses, don't have children, and are perhaps just dating. This includes people in same sex relationships and families that involve more than two adults. This law covers:

• guardianship of children,
• parental responsibilities and parenting time,
• contact,
• child support,
• spousal support,
• dividing family property and family debt,
• orders protecting people, and
• orders protecting property.

Unmarried people and parents who aren't spouses can only use the Family Law Act to ask for orders about the care of children, child support, and orders protecting people. Married spouses and unmarried spouses can use the act to ask for orders about the care of children, child support, and orders protecting people, as well as orders about spousal support, property and debt, and orders protecting property.

The Supreme Court can make orders under both the Divorce Act and the Family Law Act. The Provincial Court can only make orders under the parts of the Family Law Act that don't deal with property.

This chart shows which law deals with which issue:

	Provincial Family Law Act	Federal Divorce Act
Divorce		Yes
Care of children	Guardianship and parental responsibilities	Custody
Time with children	Parenting time or contact	Access
Child support	Yes	Yes
Children's property	Yes
Spousal support	Yes	Yes
Family property and family debt	Yes
Protection orders	Yes
Financial restraining orders	Yes

There is a bunch of other legislation that deals with family law problems, such as the Adoption Act (which deals with adoption), the Name Act (which deals with changing your name and your children's names), the Land Title Act (which has to do with land and houses), and the Vital Statistics Act (which has to do with registering births, deaths, marriages, and divorces). The most important of these other laws is the Child Support Guidelines.

The Child Support Guidelines sets out the rules about how much child support should be paid, according to both the income of the person paying child support and the number of children child support is being paid for. For most people, the amount that should be paid is set out in a table at the end of the Guidelines. The Guidelines also sets out the rules about when child support can be paid in an amount different than what the tables say should be paid.

Further reading
Chapters on:

• Introduction to the Legal System for Family Matters, in particular the section on The Law for Family Matters
• Legislation in Family Matters in Getting Started
• Child Support, in particular the section on Child Support Guidelines

The care of children

There are three things that parents must decide when their relationship ends:

• where the children will mostly live,
• how the parents will make decisions about the important events in the children's lives, and
• how much time each parent will have with the children.

The Divorce Act talks about these issues in terms of custody and access. Custody sort of means where the children live most of the time, but separated parents can both have custody, called joint custody, and not have anywhere close to half of the children's time. In cases like this, joint custody means an equal right to participate in making decisions about the children. Access is the word used to describe the schedule of the child's time between their parents. When the Divorce Act is changed in 2020, it will talk about these issues in terms of parenting orders that cover decision-making responsibilities, parenting time, and contact.

The Family Law Act talks about these issues in terms of:

• parental responsibilities (which is really the same as decision-making responsibilities),
• parenting time
• contact

People who are guardians, usually parents, have parental responsibilities and parenting time. Someone who isn't a guardian, which might include a parent, may have contact with a child.

Parental responsibilities are all about parenting. They include making decisions about where the children go to school, how they are treated when they get sick, whether they will play sports or take music lessons, and about the religion they will be taught. Parental responsibilities can be shared between guardians or divided between them, so that only one guardian can make decisions about a particular parenting issue. When more than one guardian share a parental responsibility, the guardians must try to work together to make decisions about that issue.

Parenting time and contact are the terms used to describe the schedule of the child's time between guardians and between guardians and people who are not guardians.

Further reading
Chapter on:

• Children in Family Law Matters, in particular the sections on Custody and Access and Guardianship, Parenting Arrangements and Contact

Child support

Child support is normally paid by the parent who has the children for the least amount of time to the parent who has the children for the most amount of time. Child support is paid to help with the children's day-to-day living expenses, and covers a lot of things, from new clothes to school supplies to the children's share of the rent.

Child support is not a fee a parent must pay to see the children. Child support has nothing to do with custody or guardianship; it has nothing to do with access, parenting time, or contact; it has nothing to do with whether a parent is a good parent or a bad parent. A parent has a duty to pay child support just because they are a parent.

Child support is almost always paid every month in the amount required by the Child Support Guidelines. A parent's duty to pay child support does not end until the child turns 19. It can last longer than that if a child has an illness or disability that prevents the child from earning a living, or if the child is going to university or college.

Normally, a parent pays the exact amount of child support the Guidelines tables say should be paid. A parent can pay a smaller amount in a limited number of circumstances, including if: the children's time is shared almost equally between the parents; one or more children live with each parent; or, paying the amount required by the Guidelines would cause serious financial hardship to a parent.

The basic amount of child support is intended to cover most of the children's expenses. Some expenses, called special or extraordinary expenses, are not covered in this basic amount. Typically, extraordinary expenses are expenses like daycare and orthodontics — big, important expenses that most but not all children have. Where the children have extraordinary expenses, the parents contribute to those expenses in proportion to their incomes. For example, if one parent earns $30,000 per year and the other earns $20,000, the first parent would have to pay 60% of an extraordinary expense and the other would have to pay 40%.

Further reading
Chapter on:

• Child Support, in particular the section on the Child Support Guidelines

Spousal support

Spousal support is money paid by one spouse to another spouse, for one of three reasons. Spousal support may be paid to help a spouse meet their day-to-day living expenses, or it may be paid to compensate a spouse for the economic consequences of decisions made during the relationship. Spousal support may also be paid because a spouse agreed to pay it, perhaps in a marriage agreement or a living-together agreement, but more commonly in a separation agreement. Spousal support is not automatically payable just because people were married or unmarried spouses; the person who wants support must prove that they are entitled to get it.

The decisions made by people during their relationship can cause a spouse to be entitled to compensation if those decisions took the spouse out of the paid workforce, required the spouse to move to a place where there was less financial opportunity, prevented the spouse from taking a promotion, or have made it more difficult for the spouse to get a job after separation. Say, for example, the people in a relationship decided that one of them should quit work and stay at home to raise the children and be a homemaker. A spouse who stays at home may have to leave a job, and it can be very difficult to return to work after being out of the workforce, particularly when the relationship was long and there is no career to return to.

The end of a relationship can cause a spouse to need financial help. After people separate, the same amount of money they had during the relationship now has to pay for two rent bills, two electricity bills, and two grocery bills. When the family were together, however, their combined incomes only had to pay for one rent bill, one electricity bill, and one phone bill.

Spousal support is usually paid every month for a certain amount of time, although it can be paid indefinitely or in one large lump-sum payment. The amount of spousal support that is paid is usually an amount that the person with more money can afford to pay, using a portion of the money left over after that person's basic living expenses have been paid.

When a relationship was very long or the adults are older, spousal support can be paid forever or until they start to get pensions or government benefits like CPP. When the adults are younger, spousal support is usually only paid for a specific amount of time. This is because the person getting support has an obligation to try to become financially independent from the person paying support.

The amount of spousal support that should be paid and the length of time support should be paid can also be calculated using the Spousal Support Advisory Guidelines. The Advisory Guidelines uses two formulas, one for when a family has children and one for when they don't, that calculate how much support should be paid according to the length of the relationship and each party's annual income.

There are three very important things to know about the Advisory Guidelines:

1. The Advisory Guidelines is not a law and there is no rule saying that the Advisory Guidelines formulas must be used. Despite this, lawyers and the court use the Advisory Guidelines almost all the time when spousal support is going to be paid.
2. The Advisory Guidelines is only used when someone is proven to be entitled to receive support; if there is no entitlement, the Advisory Guidelines doesn't apply.
3. The formulas the Advisory Guidelines describes are very complicated. In particular, the formulas that are used when a family has children cannot be done without using a computer program.

Only people who are married spouses or unmarried spouses can ask for spousal support. Married spouses must ask for spousal support within two years of their divorce. Unmarried spouses must ask for spousal support within two years of their separation.

Further reading
Chapter on:

• Spousal Support, in particular the section on The Spousal Support Advisory Guidelines

Dividing family property and family debt

If spouses are married or have lived together with each other in a marriage-like relationship for more than two years, each spouse is usually each entitled to half of the family property when their relationships end. Family property is property acquired after living together or getting married, and during the time of the relationship, including:

• real estate as well as personal property,
• bank accounts, investments, RRSPs, and pensions,
• the interest of a spouse in a company, business, or partnership,
• debts owed to a spouse, and
• the increase in value of excluded property during the relationship.

Each spouse is usually entitled to keep all of their excluded property. Excluded property includes:

• the property already owned by a spouse on the date the spouses began to live together or the date they married, whichever is earlier,
• gifts or inheritances received by a spouse during the relationship,
• certain kinds of court awards and insurance payments made to a spouse during the relationship, and
• property bought during the relationship with excluded property.

Each spouse is also usually responsible for half of the family debt. Family debt includes:

• all debts incurred by either spouse during the relationship, and
• debt incurred after separation, if the debt was incurred to maintain family property.

The spouses' right to a share in the family property and their duty to share in the family debt happens when the spouses separate. Separation doesn't only happen when someone moves out. Spouses can be separated while living together, as long as one of them has said the relationship is over and then behaved as if the relationship was over, for example by not sleeping together or eating together anymore, and by stopping doing chores for the other spouses.

Further reading
Chapter on:

• Property & Debt in Family Law Matters

Separation and divorce

You don't need a legal document to separate, and you don't need to see a lawyer or a judge to separate. You just leave the relationship or announce that it's over and then behave like it's over. There is no such thing as a "legal separation" in British Columbia.

For unmarried spouses and other unmarried adults, their relationship is over the moment they separate. That's it, it's done! There is no such thing as a "common-law marriage," and unmarried spouses never need to get divorced.

For a marriage to legally end, however, married spouses must divorce, and that means they must get a court order saying that they are divorced. A married couple can be separated for many years but still be married if they haven't gotten a divorce order.

Sometimes married people don't get around to getting a divorce for many, many years. That's fine. The only thing a separated married person can't do that an unmarried person can do is marry again. Separated married people can date someone else, live with someone else, be in a unmarried relationship with someone else, have property in their own name, have bank accounts and credit cards in their own name, and so on.

There is only one reason why a court will make a divorce order: it believes that the marriage has broken down. The breakdown of a marriage can be shown in one of three ways:

1. the spouses have separated and have stayed separated for more than one year,
2. a spouse has had sex with someone other than the other spouse, called adultery, or
3. a spouse has been verbally, emotionally, or physically abusive to the other spouse, which is what the Divorce Act means by cruelty.

To get a divorce order, you have to start a court proceeding. You don't have to ask the court for anything else except a divorce, if a divorce is all you need. When a married couple agrees to get a divorce, they can get a divorce using the do-it-yourself desk order process, and they won't have to go in front of a judge, ever.

Further reading
Chapter on:

• Separation & Divorce

Information for people who are new to Canada

In Canada, men and women have exactly the same rights. There is no difference between the rights a man has and the rights that a woman has, whether they are married to each other or not. Men do not have the right to control women or tell them what they may and may not do, even if they are married to one another. As well, people in same sex relationships have exactly the same rights as people in opposite sex relationships.

Our courts are open to everybody who lives in Canada, not only to people who have Canadian citizenship. People who are new to Canada can make a claim in court, regardless of their citizenship status, including whether they have permanent residency in Canada or not.

There is no law that requires someone who is unhappy in a marriage to stay in that marriage. If someone wants to leave a relationship, they can, and that person does not need the permission or agreement of their spouse, a family member, or anyone else to leave the relationship.

In Canada, there is no requirement for either dowry or dower to be paid when a couple marries or divorces. Even if a religion requires such a payment, the religious duty is not legally binding in Canada.

If an arranged marriage has been proposed, the parties must still agree to the marriage of their own free will. There is no law that allows someone to be forced to marry someone else. An agreement between relatives about a marriage is not legally binding on the people who are supposed to get married.

When one spouse sponsors another spouse to come to Canada, that person will usually sign a sponsorship agreement with the government. This is an agreement that requires the sponsor to support the person who is coming to Canada, whether they stay married, separate, or divorce. This agreement is only between the sponsor and the government. If the person coming to Canada needs spousal support, for example, they can ask the court for an order that spousal support be paid.

Separation does not automatically mean that someone new to Canada will have to leave the country. People who are permanent residents, for example, will usually be allowed to stay, regardless of what is happening in their relationship with their sponsors. You should, however, speak to an immigration lawyer just to be sure.

In Canada, you must have a court order to divorce and legally end a marriage. Religious divorces are not recognized in Canada as divorces that legally end a marriage. The decisions of religious tribunals about how a separated couple will share their property or manage the care and control of their children may not be recognized in British Columbia.

Further reading
Chapter on:

• Information for newcomers to Canada in the section on Immigrants and Family Law

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, June 21, 2019.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.