Family Law Act

The Family Law Act

The Family Law Act is a British Columbia law that you can find, along with other provincial laws, at the official government website of the Queen's Printer or on CanLII, a free website that lets you search Canadian laws and court decisions. The Family Law Act covers these basic subjects:

• determining who the parents of a child are,
• guardianship of children,
• parental responsibilities,
• parenting time and contact with children,
• moving away, with or without children,
• child support,
• managing children's property,
• spousal support,
• dividing property and debt,
• orders protecting people, and
• orders protecting property.

The Family Law Act applies to:

• married spouses, people who are, or were, married to each other by a marriage commissioner or a religious official licensed to perform marriages,
• unmarried spouses, people who live, or used to live, together in a romantic relationship,
• people who are the parents of a child together, and
• people who are the guardians of a child.

Unlike the Divorce Act, there are no rules requiring you to live in British Columbia for a certain amount of time before you can ask the court for an order under the Family Law Act.

Section 3 of the act says who is a "spouse:"

(1) A person is a spouse for the purposes of this Act if the person

(a) is married to another person, or

(b) has lived with another person in a marriage-like relationship, and

(i) has done so for a continuous period of at least 2 years, or

(ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.

(2) A spouse includes a former spouse.

Part 3 of the act has the rules for deciding who is a "parent." Most of the time, the parents of a child are the child's birth mother and biological father. (Section 26(2) lists the circumstances in which a man is assumed to be the biological father of a child, such as being married to the birth mother, and section 33 says when the court can order that a DNA test be conducted to determine whether a man is the biological father of a child.) When a child is conceived through assisted reproduction, a child's birth parents — depending on the arrangements people make — can include a donor of sperm, a donor of eggs, a surrogate mother and the spouse of a surrogate mother.

Section 1 of the act defines a child as "a person who is under 19 years of age." Section 146 expands that definition for the part of the act about child support, and says that "'child' includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians." ("Other reason" usually means that the adult child is going to college or university.)

The same section expands the definition of parent for the purposes of child support. Under this definition, "parent" can include someone who is a stepparent. A "stepparent" is "a person who is a spouse of the child's parent and lived with the child's parent and the child during the child's life."

Section 39 says who is assumed to be the guardian of a child:

(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian.

(3) A parent who has never resided with the parent's child is not the child's guardian unless one of the following applies:

(a) section 30 [parentage if other arrangement] applies and the person is a parent under that section;

(b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian;

(c) the parent regularly cares for the child.

It's important to notice that while the parents of a child are usually each a guardian of a child, this is not always the case. However, the court can make an order under section 51 of the Family Law Act to appoint a person, including a parent, as a guardian of a child.

Someone who is a guardian — whether or not they are a parent, a married spouse or an unmarried spouse — can ask the court for:

• an order about parental responsibilities for any children, and
• an order about parenting time and contact with a child.

Someone who is a parent or a guardian of a child — whether or not they are a married spouse or an unmarried spouse — can ask the court for an order that they pay or receive child support.

Someone who is a married spouse or an unmarried spouse can ask the court for:

• an order that they pay or receive spousal support, and
• an order for the division of property and debt, as long as a person who is an unmarried spouse has lived with their partner for at least two years.

Anyone can ask the court for:

• a declaration about who the parents of a child are,
• an order that they have contact with a child,
• an order appointing them as the guardian of a child, and
• an order about the management of a child's property.

JP Boyd on Family Law provides extensive coverage of the Family Law Act, including a chapter on Family Law Act Basics.