Difference between revisions of "The Legislation on Family Law"

The most important law in family and divorce law are the provincial ''Family Law Act'' and the federal ''Divorce Act''. There is also a very important federal regulation, the Child Support Guidelines, and an important academic paper, the Spousal Support Advisory Guidelines. You may also run into other laws, like the ''Name Act'' or the ''Partition of Property Act'', which weren't written just for family law disputes but still relate to your situation.

The Child Support Guidelines apply to child support orders made under both the Divorce Act and the provincial Family Relations Act. Because they are mandatory whenever child support is being paid, the Child Support Guidelines also apply to agreements about child support.

D. The Spousal Support Advisory Guidelines

The Spousal Support Advisory Guidelines is not a law. It is an academic paper that describes mathematical formulas that can be used to calculate how much spousal support should be paid and how long spousal support should be paid, once a person's entitlement to receive spousal support has been proven.

II. Other Legislation

This segment discusses some of the secondary legislation relating to marriage, children, child protection, the enforcement of orders and agreements relating to support payments, real property, wills and estates, and name changes.

The federal Marriage (Prohibited Degrees) Act sets out the degrees of consanguinity — relatedness by blood — a couple cannot have if they are to marry each other. The federal Civil Marriage Act defines marriage as the "union of two person" rather than "the union of a man and a woman," thus allowing same-sex couples to marry, and makes related changes to other federal legislation like the Divorce Act and the Income Tax Act.

The provincial Marriage Act deals with the formalities of marriage, and covers such things as who is entitled to marry people, marriage licences, and the age at which a couple can legally marry.

Marriage (Prohibited Degrees) Act

See the chapter Marriage & Divorce > Marriage for more information about marriage, void marriages and annulment.

The provincial Adoption Act deals with such things as who can give a child up for adoption, who may adopt a child and the general ins and outs of the adoption process.

The provincial Parental Responsibility Act says that parents whose children have been convicted of causing damage or loss of property may be held responsible for loss caused their children's offences, up to a maximum of $10,000.

Age of Majority Act

See the section Children for more information about the law on children generally, and the chapter Other Family Law Issues > Adoption for information about the adoption process.

On 1 October 2002, the Children's Commissioner, which investigated serious injuries or deaths suffered by children, and the Office of the Child, Youth and Family Advocate, which investigated issues involving children in the care of or involved with governmental and private agencies, were replaced by the Office for Children and Youth. On 18 May 2006, this was in turn replaced by the Representative for Children and Youth. The goals of the representative, who has significant oversight powers, are to:

The provincial Child, Family and Community Service Act gives the government, specifically the Ministry for Children and Family Development, the power to apprehend children believed to be suffering from child abuse or neglect, or who are at risk of child abuse or neglect. The act regulates the conditions under which children can be seized, the conditions in which they may be placed in the care of the government, and the authority and powers of child protection workers.

Child, Family and Community Service Act

Representative for Children and Youth Act

See the chapter Other Family Law Issues > Family Violence for additional information about child protection issues.

The provincial Interjurisdictional Support Orders Act allows support orders made outside of British Columbia to be registered in this province for enforcement. It also lets someone affected by that order to start a process here that may result in the variation of that order in the court that originally made the order. The act does not apply to all support orders, only to the orders of the countries, provinces and states which have a reciprocal agreement with British Columbia.

Family Maintenance Enforcement Act

Court Order Enforcement Act

See the chapter Other Family Law Issues > Enforcing Orders & Agreements for more information about enforcing child and spousal support.

The provincial Land Title Act deals with all aspects of real property in British Columbia, including the conditions of holding valid title to a piece of land, placing and removing encumbrances (like liens and mortgages) on the title of a property, and the conditions under which a Certificate of Pending Litigation can be placed on title. The Partition of Property Act gives someone who owns property jointly with somoene else the right to force the sale of that property over the objections of the other owner.

Land (Spouse Protection) Act

Partition of Property Act

See the chapter Family Assets > Protecting Assets for more information about protecting property.

F. Wills and Estates

Marriage and divorce affect how property is distributed through a will and how property is distributed when someone dies without a will, called dying intestate. Two pieces of provincial legislation are important here, the Wills Act and the Estate Administration Act. The Wills Act provides that:

(2) This section applies if an intestate dies leaving a spouse and issue.

(3) If the net value of the person's estate is not greater than $65 000, the estate goes to the spouse.

(4) If the net value of the person's estate is greater than $65 000, the spouse is entitled to $65 000, and has a charge on the estate for that sum.

(5) After payment of the sum of $65 000, the residue of the estate goes as follows:

(a) if the intestate dies leaving a spouse and one child, 1/2 goes to the spouse;

(b) if the intestate dies leaving a spouse and children, 1/3 goes to the spouse.

(6) If a child has died leaving issue and the issue is alive at the date of the intestate's death, the spouse takes the same share of the estate as if the child had been living at the date.