2,553
edits
Difference between revisions of "Learning about Family Law"
From Clicklaw Wikibooks
no edit summary
Drew Jackson (talk | contribs) |
|||
| Line 1: | Line 1: | ||
{{REVIEWEDPLS | reviewer = [[People's Law School]]|date= January 2023}}{{Learning about the Law Wikibook TOC}}{{Law-Related ESL Badge | {{REVIEWEDPLS | reviewer = [[People's Law School]]|date= January 2023}}{{Learning about the Law Wikibook TOC}}{{Law-Related ESL Badge | ||
|lessonname= Elder Law Lesson Module}} | |lessonname= Elder Law Lesson Module}} | ||
Family law is the area of law that deals with relationships, marriage, and children. | Family law is the area of law that deals with relationships, marriage, and children. | ||
{{PLSTipsbox | |||
| text = For updated and in-depth information on family law in BC, visit [https://dialalaw.peopleslawschool.ca/ dialalaw.ca]. | |||
}} | |||
==Family relationships== | ==Family relationships== | ||
===The laws in play=== | ===The laws in play=== | ||
There are two main laws dealing with family law. They are the: | There are two main laws dealing with family law. They are the: | ||
*'' | * ''Family Law Act'': This BC law applies to all couples (married and unmarried). | ||
*'' | * ''Divorce Act'': This federal law applies to married couples only (or those who used to be married). | ||
These laws (and others) apply in the same way to people in opposite-sex and same-sex relationships. | These laws (and others) apply in the same way to people in opposite-sex and same-sex relationships. | ||
===Family law and Indigenous Peoples=== | ===Family law and Indigenous Peoples=== | ||
For many family law matters, the same laws apply to everyone. For example, there are no distinct laws for Indigenous Peoples about getting married. | For many family law matters, the same laws apply to everyone. For example, there are no distinct laws for Indigenous Peoples about getting married. | ||
There are some situations where a person’s Indigenous identity and heritage are considered. For example, a court will consider an Indigenous child's upbringing, culture and heritage in deciding what parenting arrangements are in the child’s best interests. | There are some situations where a person’s Indigenous identity and heritage are considered. For example, a court will consider an Indigenous child's upbringing, culture and heritage in deciding what parenting arrangements are in the child’s best interests. | ||
A few laws about family matters are different for Indigenous Peoples. For example, when a couple separates, if one of them lives on a First Nation reserve, certain other laws apply. Legal Aid BC explains the [https://family.legalaid.bc.ca/aboriginal-people/ | A few laws about family matters are different for Indigenous Peoples. For example, when a couple separates, if one of them lives on a First Nation reserve, certain other laws apply. Legal Aid BC explains the family laws that apply to Indigenous Peoples at [https://family.legalaid.bc.ca/aboriginal-people family.legalaid.bc.ca/aboriginal-people]. | ||
===Getting married=== | ===Getting married=== | ||
To get married in | To get married in BC, someone has to be unmarried and age 19 or older. (Young people between 16 and 19 can marry with the consent of their parents or '''guardians'''.) They also have to understand the nature of the marriage ceremony. | ||
Someone doesn't have to be a resident of BC to get married here. But they do need a marriage licence. They need to apply for it some time in the three months before their wedding date. | Someone doesn't have to be a resident of BC to get married here. But they do need a marriage licence. They need to apply for it some time in the three months before their wedding date. | ||
A valid marriage lasts until one partner dies or until the marriage is legally ended by a '''divorce'''. | A valid marriage lasts until one partner dies or until the marriage is legally ended by a '''divorce'''. | ||
| Line 28: | Line 32: | ||
When someone is married, the law says they are a '''spouse'''. As a spouse, they have legal rights and responsibilities about caring for each other and their children. | When someone is married, the law says they are a '''spouse'''. As a spouse, they have legal rights and responsibilities about caring for each other and their children. | ||
Someone is also considered a spouse under the law in two other situations: | Someone is also considered a spouse under the law in two other situations: | ||
* If they’ve lived together in a '''marriage-like relationship for two years or more'''. | * If they’ve lived together in a '''marriage-like relationship for two years or more'''. | ||
* If they’ve lived together in a '''marriage-like relationship and have a child together'''. | * If they’ve lived together in a '''marriage-like relationship and have a child together'''. | ||
| Line 35: | Line 39: | ||
===Guardians and guardianship=== | ===Guardians and guardianship=== | ||
A child’s parents are the '''guardians''' of the child while they live together and after they separate. This means they are responsible for caring for the child and making decisions affecting the child. | A child’s parents are the '''guardians''' of the child while they live together and after they separate. This means they are responsible for caring for the child and making decisions affecting the child. | ||
If the parents separate, both remain the child’s guardians, unless an agreement or court order removes one of them as a guardian. | |||
Generally, a parent who has never lived with their child is not the child’s guardian. There are a few exceptions, such as if they regularly care for the child. | |||
Generally, a parent who has never lived with their child is not the child’s guardian. There are a few exceptions, such as if they regularly care for the child. | |||
People other than parents — such as grandparents, for example — can sometimes be guardians. But they must apply to court for an order naming them as guardians. | People other than parents — such as grandparents, for example — can sometimes be guardians. But they must apply to court for an order naming them as guardians. | ||
===Family law agreements=== | ===Family law agreements=== | ||
| Line 54: | Line 55: | ||
An agreement made after a couple separates covers their decisions about parenting, financial support, and dividing property and debt. This type of agreement is called a '''separation agreement'''. | An agreement made after a couple separates covers their decisions about parenting, financial support, and dividing property and debt. This type of agreement is called a '''separation agreement'''. | ||
Making a family law agreement saves time, money, and stress. It allows couples to keep control of important decisions that affect their family. | Making a family law agreement saves time, money, and stress. It allows couples to keep control of important decisions that affect their family. | ||
Before signing a family law agreement, each | Before signing a family law agreement, each spouse should get legal advice. They should see separate lawyers about what the agreement says. | ||
==When a relationship breaks down== | ==When a relationship breaks down== | ||
===Separation=== | ===Separation=== | ||
Every year in BC, thousands of married and unmarried '''spouses''' stop living together as a couple. This is called '''separation'''. | Every year in BC, thousands of married and unmarried '''spouses''' stop living together as a couple. This is called '''separation'''. | ||
Spouses are separated when one or both people: | Spouses are separated when one or both people: | ||
* decide their relationship is over, | * decide their relationship is over, | ||
* tell the other person their decision, and | * tell the other person their decision, and | ||
* act like the relationship is over. | * act like the relationship is over. | ||
Even if a couple continues to live in the same home, they can be considered separated if they don’t share things like meals, a bedroom, and social activities. | Even if a couple continues to live in the same home, they can be considered separated if they don’t share things like meals, a bedroom, and social activities. | ||
Spouses don’t need to agree to separate. They also don’t need to sign any papers, see a lawyer, or go to court to be separated. | Spouses don’t need to agree to separate. They also don’t need to sign any papers, see a lawyer, or go to court to be separated. | ||
====Decisions to make==== | ====Decisions to make==== | ||
When a couple separates, they must make many decisions. For example: | When a couple separates, they must make many decisions. For example: | ||
* Does one person need financial help from the other? This is called '''spousal support'''. Can the other person afford to pay it? If so, how much can they afford to pay and for how long? | * Does one person need financial help from the other? This is called '''spousal support'''. Can the other person afford to pay it? If so, how much can they afford to pay and for how long? | ||
* Who will stay in the family home? Can everybody still live there or does someone need to move out? | * Who will stay in the family home? Can everybody still live there or does someone need to move out? | ||
* How will property be divided? How will debts be shared? | * How will property be divided? How will debts be shared? | ||
* If there are children, where will they live? How will decisions about their care be made? How will the parents share time with the children? | * If there are children, where will they live? How will decisions about their care be made? How will the parents share time with the children? | ||
* Does '''child support''' need to be paid? If so, which parent should pay child support and how much? | * Does '''child support''' need to be paid? If so, which parent should pay child support and how much? | ||
| Line 83: | Line 83: | ||
A spouse may be '''sponsored''' to come live in Canada as a permanent resident. If they separate from their sponsor, they may worry whether they can stay in Canada. They can. Their sponsor can’t make them leave the country. And the sponsor doesn’t have the right to keep the couple’s children or property. | A spouse may be '''sponsored''' to come live in Canada as a permanent resident. If they separate from their sponsor, they may worry whether they can stay in Canada. They can. Their sponsor can’t make them leave the country. And the sponsor doesn’t have the right to keep the couple’s children or property. | ||
In their booklet | In their booklet ''Sponsorship Breakdown'', Legal Aid BC explains what happens when an immigration sponsorship breaks down. | ||
===Divorce=== | ===Divorce=== | ||
{{PLSStorybox | |||
| image = [[File:Headshot_-_Learning_about_the_Law_-_Neil_-_2023.png|link=]] | |||
| text = “Marianne and I separated a few months ago. I thought we needed to do something to get a legal separation, like sign some papers or go to court. But a lawyer told me we don’t have to do anything. As long as one of us wants to end the relationship, tells the other, and acts like our relationship is over, we are separated. Once we’ve been separated for at least a year, one or both of us can apply to court for a divorce. In the meantime, we can make a family law agreement to settle our issues.” <br>- Neil, Salt Spring Island, BC | |||
}} | |||
For a married couple to end their marriage, they must follow a legal process called '''divorce'''. (If the marriage wasn’t valid, they can apply for an '''annulment'''.) | For a married couple to end their marriage, they must follow a legal process called '''divorce'''. (If the marriage wasn’t valid, they can apply for an '''annulment'''.) | ||
Getting a divorce involves filling out forms and filing them with the BC Supreme Court. A judge looks over the documents. They will decide whether to grant a divorce. | Getting a divorce involves filling out forms and filing them with the BC Supreme Court. A judge looks over the documents. They will decide whether to grant a divorce. | ||
To apply for a divorce, a spouse must have lived in BC for at least 12 months. They don’t need their spouse’s permission to apply. But they have to show their marriage has broken down. A spouse can do this by showing any of these things: | To apply for a divorce, a spouse must have lived in BC for at least 12 months. They don’t need their spouse’s permission to apply. But they have to show their marriage has broken down. A spouse can do this by showing any of these things: | ||
* that the spouses have lived separately for at least one year | * that the spouses have lived separately for at least one year | ||
* that their spouse has committed '''adultery''' | * that their spouse has committed '''adultery''' | ||
* that their spouse abused them physically or mentally (called '''cruelty''' under the law) | * that their spouse abused them physically or mentally (called '''cruelty''' under the law) | ||
Someone can apply for a divorce in BC even if they were married in another country. They will need to show proof they were legally married — such as by providing their original marriage certificate. | Someone can apply for a divorce in BC even if they were married in another country. They will need to show proof they were legally married — such as by providing their original marriage certificate. | ||
Some cultures have their own divorce ceremony. But a couple is not legally divorced in Canada unless they have a '''court order''' for divorce from Canada or another country. | Some cultures have their own divorce ceremony. But a couple is not legally divorced in Canada unless they have a '''court order''' for divorce from Canada or another country. | ||
For more on the requirements to get a divorce and the process involved, visit [https://dialalaw.peopleslawschool.ca/ dialalaw.ca]. | |||
===Decisions about children=== | ===Decisions about children=== | ||
| Line 105: | Line 110: | ||
====Parenting arrangements==== | ====Parenting arrangements==== | ||
A child’s parents can make arrangements to share '''parental responsibilities''' and '''parenting time'''. | A child’s parents can make arrangements to share '''parental responsibilities''' and '''parenting time'''. | ||
Parental responsibilities include making decisions about day-to-day care. It also includes making decisions about important aspects of the child’s life. This includes where they go to school, how they’re treated when they get sick, and if they’ll be raised in a religion. When parents separate, parental responsibilities can be shared or be given to just one parent. | Parental responsibilities include making decisions about day-to-day care. It also includes making decisions about important aspects of the child’s life. This includes where they go to school, how they’re treated when they get sick, and if they’ll be raised in a religion. When parents separate, parental responsibilities can be shared or be given to just one parent. | ||
Parenting time is the time that a parent spends with a child. During parenting time, a parent is responsible for the care of the child and making day-to-day decisions. | Parenting time is the time that a parent spends with a child. During parenting time, a parent is responsible for the care of the child and making day-to-day decisions. | ||
| Line 115: | Line 120: | ||
====Best interests of the child==== | ====Best interests of the child==== | ||
If parents can’t agree about the care of their children, they can ask a court to decide. When making decisions like these, courts only consider the best interests of the children. Factors that go into this include: | If parents can’t agree about the care of their children, they can ask a court to decide. When making decisions like these, courts only consider the best interests of the children. Factors that go into this include: | ||
* the child’s health and emotional well-being | * the child’s health and emotional well-being | ||
* what the child wants and needs | * what the child wants and needs | ||
* who cared for the child in the past | * who cared for the child in the past | ||
* whether there is a history of family violence | * whether there is a history of family violence | ||
* what the parents are capable of (each one’s ability to carry out their responsibilities for the child) | * what the parents are capable of (each one’s ability to carry out their responsibilities for the child) | ||
===Child support=== | ===Child support=== | ||
Parents are legally responsible for financially supporting their children. This is true even if one parent doesn’t see or take care of the children. | Parents are legally responsible for financially supporting their children. This is true even if one parent doesn’t see or take care of the children. | ||
'''Child support''' is money paid by one parent to the other parent. It’s paid after separation to help cover the costs of raising the children. | '''Child support''' is money paid by one parent to the other parent. It’s paid after separation to help cover the costs of raising the children. | ||
The parent with whom the child lives most of the time is entitled to receive child support from the other parent. If a child spends the same amount of time with both parents, the parent with the higher income usually has to pay child support. | The parent with whom the child lives most of the time is entitled to receive child support from the other parent. If a child spends the same amount of time with both parents, the parent with the higher income usually has to pay child support. | ||
Child support is calculated using rules called the Child Support Guidelines. These rules are based on the income of the parent who must pay support and the number of children needing support. | Child support is calculated using rules called the Child Support Guidelines. These rules are based on the income of the parent who must pay support and the number of children they have needing support. | ||
{{PLSStorybox | |||
| image = [[File:Headshot_-_Learning_about_the_Law_-_Nadia_-_2023.png|link=]] | |||
| text = “When we separated, my husband agreed the kids should live with me. But we couldn’t agree on money for the kids. So we went to a family justice counsellor. They told us child support is a child’s right and that my husband has to pay money to support the children, based on his income. The counsellor helped us make an agreement.” <br>- Nadia, Vancouver, BC | |||
}} | |||
===Spousal support=== | ===Spousal support=== | ||
The breakup of a relationship can leave '''spouses''' on an unequal financial footing. A spouse who’s struggling moneywise may ask the other for help. This is called '''spousal support'''. It’s meant to help a spouse after separation with living expenses and with becoming financially independent. | The breakup of a relationship can leave '''spouses''' on an unequal financial footing. A spouse who’s struggling moneywise may ask the other for help. This is called '''spousal support'''. It’s meant to help a spouse after separation with living expenses and with becoming financially independent. | ||
Many factors determine whether a spouse can get spousal support. These include the length of the relationship, difference in incomes, and extent to which the relationship left one spouse economically disadvantaged | Many factors determine whether a spouse can get spousal support. These include the length of the relationship, difference in incomes, and extent to which the relationship left one spouse economically disadvantaged. | ||
===Family property and debt=== | ===Family property and debt=== | ||
| Line 149: | Line 154: | ||
A court can order that family property and debt be divided ''unequally'' if it would be significantly unfair to divide it equally. | A court can order that family property and debt be divided ''unequally'' if it would be significantly unfair to divide it equally. | ||
===Moving after separation=== | ===Moving after separation=== | ||
After separation, one '''spouse''' may want to move to a new place. For couples who have a child together, if the move would significantly affect the child’s relationship with other important people in their life, it’s called a '''relocation'''. This usually means moving a long distance: to another province or country, or another community in BC. | After separation, one '''spouse''' may want to move to a new place. For couples who have a child together, if the move would significantly affect the child’s relationship with other important people in their life, it’s called a '''relocation'''. This usually means moving a long distance: to another province or country, or another community in BC. | ||
The law sets out a process that must be followed. A spouse with a parenting order or agreement who wants to move generally must give written notice to the other guardian of the child, and to other people who have contact with the child. A guardian who doesn’t want the move to happen can object by making an application to court. In deciding whether or not to allow a move, a judge will look at the child’s best interests. | The law sets out a process that must be followed. A spouse with a parenting order or agreement who wants to move generally must give written notice to the other guardian of the child, and to other people who have contact with the child. A guardian who doesn’t want the move to happen can object by making an application to court. In deciding whether or not to allow a move, a judge will look at the child’s best interests. | ||
Legal Aid BC has more on the process of relocation at [https://family.legalaid.bc.ca/ family.legalaid.bc.ca]. | |||
Legal Aid BC | |||
==Abuse and staying safe== | ==Abuse and staying safe== | ||
===Family violence=== | ===Family violence=== | ||
Family violence is any kind of abusive behaviour used to get power and control over a family member. It can be intentional or unintentional. It can happen during a relationship or after it ends. | |||
Family violence is any kind of abusive behaviour used to get power and control over a family member. It can be intentional or unintentional. It can happen during a relationship or after it ends. | |||
Family violence includes physical abuse (such as hitting a partner or child). It also includes sexual, psychological, and emotional or verbal abuse. It includes threats and harassment. | Family violence includes physical abuse (such as hitting a partner or child). It also includes sexual, psychological, and emotional or verbal abuse. It includes threats and harassment. | ||
If someone is at risk of family violence, they may need to get a '''protection order''' from the court. A protection order is meant to protect a person and their children from violence carried out by another family member. It can stop the family member from making contact | If someone is at risk of family violence, they may need to get a '''protection order''' from the court. A protection order is meant to protect a person and their children from violence carried out by another family member. It can stop the family member from making contact and from visiting the family home or a workplace. | ||
If the family member does not follow the protection order, the police can help. They can arrest and charge the family member with a criminal offence. | If the family member does not follow the protection order, the police can help. They can arrest and charge the family member with a criminal offence. | ||
For more information, including key supports for those experiencing family violence, see [https://dialalaw.peopleslawschool.ca/ dialalaw.ca]. As well, Legal Aid BC offers a factsheet series, ''Live Safe, End Abuse''. | |||
===When children need protection=== | ===When children need protection=== | ||
Sometimes parents don’t take care of their children. Maybe they leave the children alone, or hurt them, or don’t give them enough food. This is '''child abuse'''. | Sometimes parents don’t take care of their children. Maybe they leave the children alone, or hurt them, or don’t give them enough food. This is '''child abuse'''. | ||
If you are aware of a possible case of child abuse, the law says you ''have'' to report it to the BC government. You can call their provincial screening line at 1-800-663-9122 at any time of the day or night. | If you are aware of a possible case of child abuse, the law says you ''have'' to report it to the BC government. You can call their provincial screening line at 1-800-663-9122 at any time of the day or night. | ||
If a child protection worker thinks a child is in danger, they can remove the child from the home and place them in a safe place, such as the home of a relative. | If a child protection worker thinks a child is in danger, they can remove the child from the home and place them in a safe place, such as the home of a relative. | ||
When a child is removed, the worker and the parents have to go to court. The judge will hear from the worker and the parents and then decide what happens to the child. | When a child is removed, the worker and the parents have to go to court. The judge will hear from the worker and the parents and then decide what happens to the child. | ||
There are some differences in the process for Indigenous children and families. For example, the child protection worker must take steps to protect the child's Indigenous identity and family ties, and a representative of the child’s Indigenous community will become involved. This process is evolving as the BC government has recognized the rights of Indigenous communities to make laws and provide their own child and family services. | There are some differences in the process for Indigenous children and families. For example, the child protection worker must take steps to protect the child's Indigenous identity and family ties, and a representative of the child’s Indigenous community will become involved. This process is evolving as the BC government has recognized the rights of Indigenous communities to make laws and provide their own child and family services. | ||
For more on child protection, see the Legal Aid BC booklets on ''Parents’ Rights, Kids’ Rights'' and ''If Your Child Is Taken'', as well as [https://dialalaw.peopleslawschool.ca/ dialalaw.ca]. Legal Aid BC has information for Indigenous Peoples about child and family rights at [https://aboriginal.legalaid.bc.ca/ aboriginal.legalaid.bc.ca]. | |||
==Resolving family law issues== | ==Resolving family law issues== | ||
Sometimes separating couples can’t agree on how to deal with their family issues. They might think going to court is their only option. Sometimes that’s true. For example, if someone is violent or is threatening to take the children out of town. | Sometimes separating couples can’t agree on how to deal with their family issues. They might think going to court is their only option. Sometimes that’s true. For example, if someone is violent or is threatening to take the children out of town. | ||
But most family law problems can be resolved without going to court. | But most family law problems can be resolved without going to court. | ||
===Resolving issues out of court=== | ===Resolving issues out of court=== | ||
Among the options to sort out family issues outside the courtroom are: | Among the options to sort out family issues outside the courtroom are: | ||
* '''Mediation'''. The separating couple meets with a trained, neutral person called a mediator. The mediator can help the couple talk to each other and agree on their issues. The mediator doesn’t take sides or force solutions on people. They don’t make any of the decisions. They work to help the couple make decisions both can live with. | * '''Mediation'''. The separating couple meets with a trained, neutral person called a mediator. The mediator can help the couple talk to each other and agree on their issues. The mediator doesn’t take sides or force solutions on people. They don’t make any of the decisions. They work to help the couple make decisions both can live with. | ||
* '''Collaborative negotiation'''. The spouses each hire a specially-trained lawyer who practises collaborative negotiation. This is a confidential negotiation process where all involved agree to do everything possible to reach a | * '''Collaborative negotiation'''. The spouses each hire a specially-trained lawyer who practises collaborative negotiation. This is a confidential negotiation process where all involved agree to do everything possible to reach a settlement without going to court. | ||
* '''Arbitration'''. The spouses hire a trained, neutral person called an arbitrator. The arbitrator makes a decision resolving the legal issues at an arbitration. Hiring an arbitrator is like hiring a private judge. An arbitrator’s decision is binding and just as enforceable as a court order. | * '''Arbitration'''. The spouses hire a trained, neutral person called an arbitrator. The arbitrator makes a decision resolving the legal issues at an arbitration. Hiring an arbitrator is like hiring a private judge. An arbitrator’s decision is binding and just as enforceable as a court order. | ||
{{PLSStorybox | |||
| image = [[File:Headshot_-_Learning_about_the_Law_-_Danny_-_2023.png|link=]] | |||
| text = “My spouse and I made a separation agreement. We clashed on a lot of things, so we decided to get help. We contacted a mediator to work out parenting arrangements, support, and property division. I’m glad we did this without having to go to court. We saved money, and we both understand what our rights and obligations are.” <br>- Danny, Squamish, BC | |||
}} | |||
===Going to court=== | ===Going to court=== | ||
Couples who can’t agree on their family issues may have to start a court action. If so, here are some things they can expect during the process: | Couples who can’t agree on their family issues may have to start a court action. If so, here are some things they can expect during the process: | ||
* '''Exchange of information'''. The law requires each '''spouse''' to provide the other with "full and true information" so they can resolve their dispute. The court rules set out what information must be provided. | * '''Exchange of information'''. The law requires each '''spouse''' to provide the other with "full and true information" so they can resolve their dispute. The court rules set out what information must be provided. | ||
* '''Meetings to discuss options'''. The court process focuses on helping spouses resolve as many of their issues as possible without having a '''trial'''. Parties meet with a judge early in the process to see if it’s possible to reach an agreement. | * '''Meetings to discuss options'''. The court process focuses on helping spouses resolve as many of their issues as possible without having a '''trial'''. Parties meet with a judge early in the process to see if it’s possible to reach an agreement. | ||
| Line 206: | Line 210: | ||
If issues remain unresolved, there will be a '''trial''' in court. A judge listens to the evidence presented and makes decisions about the issues. The judge puts the decisions into a final order. Both spouses must do what the court order says. | If issues remain unresolved, there will be a '''trial''' in court. A judge listens to the evidence presented and makes decisions about the issues. The judge puts the decisions into a final order. Both spouses must do what the court order says. | ||
To learn more about BC’s legal system, visit Legal Aid BC’s website at [https://family.legalaid.bc.ca/ family.legalaid.bc.ca]. | |||
{{Learning about the Law Wikibook Navbox}} | {{Learning about the Law Wikibook Navbox}} | ||
