Divorce (3:IV): Difference between revisions
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{{REVIEWED LSLAP | date= July 12, 2023}} | |||
{{LSLAP Manual TOC|expanded = family}} | {{LSLAP Manual TOC|expanded = family}} | ||
== A. Legislation == | == A. Legislation == | ||
The federal legislation governing divorces in Canada is the ''DA''. The ''DA'' applies to legally married couples, including same sex couples as long as residency requirements for one spouse are met. It does not apply to common law couples or other unmarried couples. The provincial family law legislation in BC is the ''FLA'', which applies to people in all relationships. The reason there are two statutes governing this area is the division of powers under sections 91 and 92 of the [http://canlii.ca/t/8q7k ''Constitution Act, 1867''] | The federal legislation governing divorces in Canada is the ''Divorce Act'' (''DA''). The ''DA'' applies to legally married couples, including same-sex couples as long as residency requirements for one spouse are met. It does not apply to common-law couples or other unmarried couples. The provincial family law legislation in BC is the ''Family Law Act'' (''FLA''), which applies to people in all relationships. The reason there are two statutes governing this area is the division of powers under sections 91 and 92 of the [http://canlii.ca/t/8q7k ''Constitution Act, 1867'']. This gives the federal government jurisdiction over “Marriage and Divorce” (s 91), while giving provincial governments jurisdiction over “The Solemnization of Marriage in the Province” and “Property and Civil Rights” (s 92). | ||
== B. Jurisdiction == | == B. Jurisdiction == | ||
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=== 1. Supreme Court === | === 1. Supreme Court === | ||
The Supreme Court of British Columbia has jurisdiction over both the ''DA'' and the ''FLA''. Because all divorce claims must be heard under the ''DA'', the Supreme Court has exclusive jurisdiction over divorce claims. The Supreme Court has concurrent jurisdiction with Provincial Court over guardianship, parenting arrangements and support for children (including common law couples) while division of property is under exclusive jurisdiction of the Supreme Court. If a Supreme Court order for | The Supreme Court of British Columbia has jurisdiction over both the ''DA'' and the ''FLA''. Because all divorce claims must be heard under the ''DA'', the Supreme Court has exclusive jurisdiction over divorce claims. The Supreme Court has concurrent jurisdiction with Provincial Court over guardianship, parenting arrangements and support for children (including common-law couples) while division of property is under exclusive jurisdiction of the Supreme Court. If a Supreme Court order for parenting time, access, or support is made under the ''DA'', that order supersedes any existing ''FLA'' order. However, given the new ''FLA'' and change of terms under the provincial legislation (parenting time, guardianship and access to guardianship, parenting arrangements and contract), there is likely to be litigation regarding which act applies and when. | ||
An uncontested divorce does not require a personal appearance in Supreme Court. Evidence can be submitted by affidavit with the application for the Divorce Order, called a “Desk Order Divorce”. In fact, parties are required to submit applications for Divorce by way of a “Desk Order” unless there is a reason to bring it on by way of application in Chambers. | An uncontested divorce does not require a personal appearance in Supreme Court. Evidence can be submitted by affidavit with the application for the Divorce Order, called a “Desk Order Divorce”. In fact, parties are required to submit applications for Divorce by way of a “Desk Order” unless there is a reason to bring it on by way of application in Chambers. | ||
Note that as of March 1, 2021, the term 'custody' under the ''DA'' was repealed, and the term 'parenting time' is used in its place. | |||
=== 2. Provincial Court === | === 2. Provincial Court === | ||
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To obtain a divorce in a particular province, one of the parties to the claim must have been “ordinarily resident” in that province for at least one year immediately preceding the presentation of the Notice of Family Claim (''DA'', s 3(1)). A person can be “ordinarily resident” in a province and still travel or have casual or temporary residence outside the province. | To obtain a divorce in a particular province, one of the parties to the claim must have been “ordinarily resident” in that province for at least one year immediately preceding the presentation of the Notice of Family Claim (''DA'', s 3(1)). A person can be “ordinarily resident” in a province and still travel or have casual or temporary residence outside the province. | ||
[http://www.parl.gc.ca/legisinfo/BillDetails.aspx?billId=5387766&Language=E&Mode=1 ''An Act to Amend the Civil Marriage Act''] received Royal Assent and came into force on June 26, 2013. It allows non-resident couples married in Canada to divorce in Canada if they cannot get a divorce | [http://www.parl.gc.ca/legisinfo/BillDetails.aspx?billId=5387766&Language=E&Mode=1 ''An Act to Amend the Civil Marriage Act''] received Royal Assent and came into force on June 26, 2013. It allows non-resident couples married in Canada to divorce in Canada if they cannot get a divorce in their country of residence. | ||
There must not be another divorce proceeding involving the same parties in another jurisdiction. If two actions are pending and the proceeding | |||
There must not be another divorce proceeding involving the same parties in another jurisdiction. If two actions are pending and were commenced on different days (divorce, corollary relief or variation), the court in which a divorce proceeding was commenced first has exclusive jurisdiction unless the first proceeding is discontinued (DA s 3(2)). As of March 1, 2021 there is no requirement that the first proceeding be discontinued within a certain amount of time to instead move forward with the second proceeding. | |||
If two proceedings were commenced on the same day, the parties have 40 days to discontinue one of such proceedings (divorce, corollary relief, or variation) (DA s 3(3), 4(3), 5(3)). If neither proceeding is discontinued within the allotted time, an application can be made by either or both of the parties to have the Federal Court determine which court retains jurisdiction by applying the following: | |||
*a. If either proceeding includes parenting order application, the court that retains jurisdiction is the court in the province in which the child is habitually present; | |||
*b. If no parenting order, the court in the province the spouses last maintained habitual residence in common retains jurisdiction; and | |||
*c. In any other case, the court that the Federal Court determines most appropriate retains jurisdiction. | |||
Parties must submit a clearance form, filled out online and printed, at the time of filing the Notice of Family Claim and Marriage Certificate. | |||
=== 2. A Valid Marriage: Proof of Marriage === | === 2. A Valid Marriage: Proof of Marriage === | ||
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*b) a document purporting to be the original or a certified copy of the certificate of marriage (the church certificate is not acceptable). Note: A certified copy is often not accepted by the Registry and all efforts should be made to obtain the original marriage certificate. | *b) a document purporting to be the original or a certified copy of the certificate of marriage (the church certificate is not acceptable). Note: A certified copy is often not accepted by the Registry and all efforts should be made to obtain the original marriage certificate. | ||
The simplest way is to use a certificate of marriage or registration of marriage. Only if the certificate or registration of marriage is not available should the evidence of a person present at the ceremony be used. An official translation of the marriage certificate and a translator’s affidavit must be provided if the marriage certificate is in any language other than English. French language marriage certificates must also be translated. The Court may require further proof that the marriage is valid if the documents evidencing the marriage appear questionable. Immigration and landing documents can be used as additional proof of marriage in these situations. In British Columbia, a party can | The simplest way is to use a certificate of marriage or registration of marriage. Only if the certificate or registration of marriage is not available should the evidence of a person present at the ceremony be used. An official translation of the marriage certificate and a translator’s affidavit must be provided if the marriage certificate is in any language other than English. French language marriage certificates must also be translated. The Court may require further proof that the marriage is valid if the documents evidencing the marriage appear questionable. Immigration and landing documents can be used as additional proof of marriage in these situations. In British Columbia, a party can order an original marriage certificate from Vital Statistics by filling out a request form. See the [https://www.vs.gov.bc.ca/marriage/certificate.html Vital Statistics website]. | ||
If a marriage certificate absolutely cannot be provided (e.g. the records cannot be obtained from the parties’ country of origin or were destroyed), and if there are no witnesses to the marriage available, a party to the divorce proceeding can attempt to prove | If a marriage certificate absolutely cannot be provided (e.g. the records cannot be obtained from the parties’ country of origin or were destroyed), and if there are no witnesses to the marriage available, a party to the divorce proceeding can attempt to prove their marriage by attesting to “cohabitation and reputation” in an affidavit. The Court will hear evidence of the couple’s “cohabitation and reputation” from the parties and witnesses. Where there are witnesses to the marriage available, a witness will be required to sign and swear an affidavit stating that: they were at the ceremony, it was conducted in accordance with the laws and religion of the country where the parties married, and to the best of their knowledge, the two parties were in fact married according to their law and traditions. | ||
=== 3. Grounds for Divorce === | === 3. Grounds for Divorce === | ||
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In accordance with s 8(1) of the ''DA'', either or both spouses may apply for a divorce on the ground that there has been a breakdown of their marriage as evidenced by separation for a year, adultery, or physical or mental cruelty (see below). For the divorce action to succeed, the claimant must have valid grounds under s 8(2)(a) or 8(2)(b), and the respondent must be unable to raise a valid defence. Most divorces are based on separation rather than adultery or cruelty, in part because the accusing party must prove adultery and/or cruelty on the balance of probabilities. Where a claim for divorce based on adultery or cruelty has been filed for more than one year before the application for divorce is heard, the Court will usually grant the divorce on the ground of one year separation. | In accordance with s 8(1) of the ''DA'', either or both spouses may apply for a divorce on the ground that there has been a breakdown of their marriage as evidenced by separation for a year, adultery, or physical or mental cruelty (see below). For the divorce action to succeed, the claimant must have valid grounds under s 8(2)(a) or 8(2)(b), and the respondent must be unable to raise a valid defence. Most divorces are based on separation rather than adultery or cruelty, in part because the accusing party must prove adultery and/or cruelty on the balance of probabilities. Where a claim for divorce based on adultery or cruelty has been filed for more than one year before the application for divorce is heard, the Court will usually grant the divorce on the ground of one year separation. | ||
Note the decision of [http://canlii.ca/t/4zgl ''McPhail v McPhail'', 2001 BCCA 250], in which the Court found that, where both the grounds of cruelty and the grounds of a one year separation for divorce exist, it would be appropriate for a trial judge to exercise | Note the decision of [http://canlii.ca/t/4zgl ''McPhail v McPhail'', 2001 BCCA 250], in which the Court found that, where both the grounds of cruelty and the grounds of a one-year separation for divorce exist, it would be appropriate for a trial judge to exercise their discretion to grant the divorce on the grounds of a one-year separation (no-fault) instead of on cruelty (fault). This was extended in [http://canlii.ca/t/fw3t1 ''Aquilini v. Aquilini'', 2013 BCSC 217] to state that a one year separation should be used as the grounds for divorce instead of adultery where both exist. | ||
== D. Divorces Based on Separation: s 8(2)(a) == | == D. Divorces Based on Separation: s 8(2)(a) == | ||
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=== 1. Adultery: s 8(2)(b)(i) === | === 1. Adultery: s 8(2)(b)(i) === | ||
Adultery is voluntary sexual intercourse between a married person and a person other than | Adultery is voluntary sexual intercourse between a married person and a person other than their spouse. The meaning of “adultery” includes sexual acts outside the marriage with a person of the same sex (''SEP v DDP'', [2005] BCJ No 1971 (BCSC)). The standard of proof for adultery is the same as the civil standard: the Court must be satisfied on a balance of probabilities (see ''Adolph v Adolph'' (1964), 51 W.W.R. 42 (BCC.A)). Proof can come in the form of an affidavit from one or both of the adulterers. | ||
The Court will require proof that the adulterous conduct was not forgiven by the innocent spouse (condonation) and that the conduct was not conspired towards for the purposes of obtaining the divorce (collusion and connivance). | The Court will require proof that the adulterous conduct was not forgiven by the innocent spouse (condonation) and that the conduct was not conspired towards for the purposes of obtaining the divorce (collusion and connivance, see below). | ||
=== 2. Physical or Mental Cruelty: s 8(2)(b)(ii) === | === 2. Physical or Mental Cruelty: s 8(2)(b)(ii) === | ||
The test for cruelty is subjective. The question asked in a cruelty case is whether the conduct is of such a kind as to render intolerable the | The test for cruelty is subjective. The question asked in a cruelty case is whether the conduct is of such a kind as to render intolerable the continued cohabitation of the spouses. There is no objective standard in the sense that certain conduct will constitute cruelty in every case while other conduct will not. The respondent’s conduct may constitute cruelty even if there is no intent to be cruel. What must be determined is the effect of the conduct on a particular person, rather than the nature of the acts committed (''Burr v Burr'', [1983] BCJ No 743). | ||
If the spouses are still cohabiting, the Court will infer that the conduct was not intolerable unless the claimant had no means or opportunity for leaving (''Cridge v Cridge'' (1974), 12 RFL 57, (BCSC)). Lack of income, children at home, and | If the spouses are still cohabiting, the Court will infer that the conduct was not intolerable unless the claimant had no means or opportunity for leaving (''Cridge v Cridge'' (1974), 12 RFL 57, (BCSC)). Lack of income, children at home, and difficulty with the English language may qualify as reasons for continuing cohabitation. | ||
Again, to make a case based on cruelty, there must be proof on the balance of probabilities. Things that could be entered as evidence in this area include medical evidence such as charts and doctors' statements. | Again, to make a case based on cruelty, there must be proof on the balance of probabilities. Things that could be entered as evidence in this area include medical evidence such as charts and doctors' statements. | ||
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=== 5. Divorce Will Not Be Granted Until Child Support Is Settled === | === 5. Divorce Will Not Be Granted Until Child Support Is Settled === | ||
In a divorce proceeding, it is the duty of the Court to satisfy itself that “reasonable arrangements” have been made for the support of any children of the marriage, typically having regard to the Federal Child Support Guidelines. If such arrangements have not been made, s 11(1)(b) of the ''DA'' requires the Court to stay the granting of the divorce. When stepchildren are involved, the Court will determine child support requirements for a | In a divorce proceeding, it is the duty of the Court to satisfy itself that “reasonable arrangements” have been made for the support of any children of the marriage, typically having regard to the Federal Child Support Guidelines. If such arrangements have not been made, s 11(1)(b) of the ''DA'' requires the Court to stay the granting of the divorce. When stepchildren are involved, the Court will determine child support requirements for a stepparent on a case-by-case basis. The definition of “child of the marriage” in s 2 of the ''DA'' is broad enough to include children for whom one spouse “stands in the place of a parent”. | ||
== G. Separation Agreements == | == G. Separation Agreements == | ||
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A separation agreement can deal with some or all of these issues. It can eliminate much of the emotional disturbance involved in courtroom proceedings, and provide the parties with an arrangement to which they have both agreed, as opposed to a Court order, with which neither party may be happy. Part 2, Section 6 outlines that parties are able to make agreements to resolve disputes and respecting matters at issue in a family law dispute and subject to the ''FLA'', the agreement is binding on the parties. | A separation agreement can deal with some or all of these issues. It can eliminate much of the emotional disturbance involved in courtroom proceedings, and provide the parties with an arrangement to which they have both agreed, as opposed to a Court order, with which neither party may be happy. Part 2, Section 6 outlines that parties are able to make agreements to resolve disputes and respecting matters at issue in a family law dispute and subject to the ''FLA'', the agreement is binding on the parties. | ||
The overarching test for any | The overarching test for any agreements made regarding Part 4 of the ''FLA'' (guardianship, parenting arrangement contact) is the best interest of the child test in section 37 of the ''FLA''. | ||
A separation agreement between spouses can also deal with division of family property and family debt, as well as any assets excluded from division. | A separation agreement between spouses can also deal with division of family property and family debt, as well as any assets excluded from division. | ||
Section 85 of the FLA excludes the following from the division of family property: | Section 85 of the FLA excludes the following from the division of family property: | ||
* Property acquired by a spouse before the relationship between the spouses began; | |||
* | * Inheritances to a spouse; | ||
* | * Gifts to a spouse from a third party; | ||
* | * A settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for | ||
** Loss to both spouses, or | |||
** Lost income of a spouse; | |||
* | * Money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for | ||
** Loss to both spouses, or | |||
** Lost income of a spouse; | |||
* | * Property referred to in any of the paragraphs above that is held in trust for the benefit of a spouse; | ||
* | * A spouse's beneficial interest in property held in a discretionary trust | ||
** To which the spouse did not contribute, and | |||
** That is settled by a person other than the spouse; | |||
* | * Property derived from property or the disposition of property referred to in any of the above paragraphs. | ||
Each spouse must be aware of the potential influence of any agreement on future expectations, and the legal implications of the agreement on questions of ownership and title in family property. Each spouse should have independent legal advice, even in cases where the parties seem to be in agreement on the terms of a separation agreement. If a separation agreement has been signed and one party did not have independent legal advice this may go towards evidence of unfair contracting and it may be possible to overturn the contract. | |||
It is possible that a separation agreement containing provisions for support may be regarded by the Court as evidence of liability on the part of the supporting spouse. While the agreement does not usurp the Court’s jurisdiction in support, guardianship or parenting arrangements, the Court will consider the terms of the agreement when making the order. Whether the Court will uphold the | It is possible that a separation agreement containing provisions for support may be regarded by the Court as evidence of liability on the part of the supporting spouse. While the agreement does not usurp the Court’s jurisdiction in support, guardianship or parenting arrangements, the Court will consider the terms of the agreement when making the order. Whether the Court will uphold the terms of the agreement changes depending on the subject matter of the agreement. See sections of the ''FLA'' that apply to each subject matter. Note also that any orders respecting agreements are subject to s 214 of the ''FLA''. | ||
In addition to property settlements, guardianship or parenting arrangements, and support, the separation agreement may embrace any other matters the parties wish to include in it, and often includes estate provisions, releases, penalties for breach of the contract, etc. A separation agreement can be more flexible than a Court order. For example, a Court order cannot contain contingent terms, but a separation agreement can. | In addition to property settlements, guardianship or parenting arrangements, and support, the separation agreement may embrace any other matters the parties wish to include in it, and often includes estate provisions, releases, penalties for breach of the contract, etc. A separation agreement can be more flexible than a Court order. For example, a Court order cannot contain contingent terms, but a separation agreement can. | ||
:'''NOTE:''' Because of the complicated nature of separation agreements, clients who wish to make a separation agreement should be | :'''NOTE:''' Because of the complicated nature of separation agreements, clients who wish to make a separation agreement should be given family law referrals. | ||
== H. Other Points to Note == | == H. Other Points to Note == | ||
=== 1. | === 1. Jurisdictions to Vary Proceedings === | ||
Section 5(1) of the ''DA'' allows a Court in a province other than the Court of original jurisdiction (that is, the Court which originally made an order) to vary an order made under the ''DA'' if: | Section 5(1) of the ''DA'' allows a Court in a province other than the Court of original jurisdiction (that is, the Court which originally made an order) to vary an order made under the ''DA'' if: | ||
* | *One of the former spouses is ordinarily resident in the province at the commencement of the proceeding; or | ||
* | *Both former spouses accept the jurisdiction of the Court. | ||
=== 2. Adjournment for Reconciliation under the DA === | === 2. Adjournment for Reconciliation under the DA === | ||
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=== 4. Support Order After Divorce Has Been Granted === | === 4. Support Order After Divorce Has Been Granted === | ||
Under s | Under s 2(1) of the current DA “spouse” means two persons who are currently married to each or were formerly married to one another. As such, a former spouse may be able to get a support order after the divorce has been granted. '''The amended DA has repealed s 15 and updated the definition of “spouse” under s 2(1) to reflect the sections under which the meaning of “spouse” is inclusive of “former spouse.” This change came into effect March 1, 2021. | ||
''' | |||
=== 5. Mediation === | === 5. Mediation === | ||
A form of mediation for separating couples is provided by the Family Justice Counsellors of the Ministry of Attorney General. It is intended to steer people out of the Court system. Similar to the small claims process, if the two parties come to an agreement through mediation they may choose to sign a binding contract after the process. Should either party choose not to sign, the agreement will not be binding. There are offices throughout BC, which can be located using the blue pages of the telephone book under BC Corrections Branch, or Family Court: Probation | A form of mediation for separating couples is provided by the Family Justice Counsellors of the Ministry of Attorney General. It is intended to steer people out of the Court system. Similar to the small claims process, if the two parties come to an agreement through mediation they may choose to sign a binding contract after the process. Should either party choose not to sign, the agreement will not be binding. There are offices throughout BC, which can be located using the blue pages of the telephone book under BC Corrections Branch, or Family Court: Probation and Family Court Services. The service is confidential and free. Family Justice Counsellors cannot deal with property and debt division. | ||
There is also the Family Mediation Practicum Program which aims to provide affordable mediation services to participants while also offering | There is also the Family Mediation Practicum Program which aims to provide affordable mediation services to participants while also offering practical training to new mediators (along with an experienced mentor mediator). See [[Governing Legislation and Resources for Family Law (3:II)#B. Resources on the Internet | II.B. Resources on the Internet]]. | ||
Parties may wish to retain a private family law mediator to assist them in mediating a resolution to their family law matter. They may contact | Parties may wish to retain a private family law mediator to assist them in mediating a resolution to their family law matter. They may contact the British Columbia Mediator Roster Society for names of family law mediators. See [[Governing Legislation and Resources for Family Law (3:II)#B. Resources on the Internet | II.B. Resources on the Internet]]. Not all family law mediators are listed on the roster, and there are many family lawyers who are specifically trained and accredited in family law mediation. | ||
The new ''FLA'' favours out of Court resolution of issues, and even gives courts the authority to refer parties to counselling and mediation (s | The new ''FLA'' favours out of Court resolution of issues, and even gives courts the authority to refer parties to counselling and mediation (s 224 ''FLA''). It also formally recognizes the role of and duties of family dispute resolution professionals (Section 8), family justice counsellors (Section 10), and parenting coordinators (Part 2, Division 3). | ||
=== 6. Collaborative Divorce === | === 6. Collaborative Divorce === | ||
Another option for parties dealing with family law matters is the Collaborative Divorce Model. This offers an option for parties to resolve | Another option for parties dealing with family law matters is the Collaborative Divorce Model. This offers an option for parties to resolve disputes respectfully and without going to Court. Parties work out a negotiated settlement with the help of collaboratively trained professionals including (as needed) lawyers, divorce coaches, child specialists and financial specialists. This allows the parties to negotiate a settlement without the threat of Court. If the parties are unable to resolve matters through the Collaborative process, the Collaborative professionals will not be involved in Court proceedings. See the websites listed in [[Governing Legislation and Resources for Family Law (3:II)#B. Resources on the Internet | II.B. Resources on the Internet]] for more information. | ||
=== 7. Rule 7-1: Judicial Case Conferences === | === 7. Rule 7-1: Judicial Case Conferences === | ||
In cases where relief other than a simple divorce is sought in the Supreme Court, Rule 7-1 of the Supreme Court Family Rules (British Columbia) requires that a judicial case conference (JCC) be held before a party to a contested family law proceeding delivers a notice of application or affidavit in support of an interlocutory application to the other party. The purpose of a JCC is to help the parties | In cases where relief other than a simple divorce is sought in the Supreme Court, Rule 7-1 of the Supreme Court Family Rules (British Columbia) requires that a judicial case conference (JCC) be held before a party to a contested family law proceeding delivers a notice of application or affidavit in support of an interlocutory application to the other party There are exceptions to this rule. A party may file and serve a notice of application and supporting affidavits in any of the following applications even though a JCC has not yet been conducted: | ||
*An application for an order under section 91 of the FLA restraining the disposition of any property at issue; | |||
*An application for an order under section 32 or 39 of the Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada) or a First Nation's law made under that Act with respect to an equivalent matter; | |||
*An application for a consent order; | |||
*An application without notice; | |||
*An application to change, suspend or terminate a final order; | |||
*An application to set aside or replace the whole or any part of an agreement; | |||
*An application to change or set aside the determination of a parenting coordinator. | |||
The purpose of a JCC is to help the parties come to an agreement on some or all of the matters at issue, to identify the issues that are in dispute and those that are not, to explore alternatives to litigation, to schedule disclosure, discoveries, and the exchange of documents, and to schedule interim applications and the trial date. JCCs may be heard by either judges or masters and are set for approximately an hour and a half. Parties can set more than one Judicial Case Conference. | |||
=== 8. Divorce Law and First Nations People === | === 8. Divorce Law and First Nations People === | ||
Special concerns arise in cases involving First Nation People registered under the [http://canlii.ca/t/7vhk ''Indian Act'', RSC | Special concerns arise in cases involving First Nation People registered under the [http://canlii.ca/t/7vhk ''Indian Act'', RSC 1985, c I-5]. The ''Indian Act'' sets out guidelines for and definitions of Aboriginal people, and defines who is eligible for “status”. Only “status” people are affected by the legislation under the ''Indian Act''. One spouse’s treaty payment may be directed to the other “where the Ministry is satisfied he deserted his spouse or family without sufficient cause, conducted himself in such a manner as to justify the refusal of his spouse or family to live with him, or has been separated by imprisonment from his spouse and family” (''Indian Act'', s 68). As well, reserve land allocated by a certificate of possession cannot be dealt with in the same manner as a matrimonial home because the rules in the ''FLA'' do not apply to reserve land. However, in such cases, the Court may ask that the spouse in possession of the reserve land pay cash compensation to the other spouse (''George v George'' (1997), 30 BCLR (3d) 107). Keep in mind that most provincial laws apply to Aboriginal people and reserve land unless they are in direct conflict with the ''Indian Act''. Further, courts will almost always take the cultural identity of the children into consideration when making an order for parenting time; see e.g. [https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1699/index.do ''D.H. v H.M.'', [1999<nowiki>]</nowiki> SCJ No 22], and see [http://canlii.ca/t/51z8 ''Van de Perre v Edwards'', [2001<nowiki>]</nowiki> SCJ No 60]. | ||
Furthermore, for First Nation Peoples living on reserves, the ''Family Homes on Reserves and Matrimonial Interests or Rights Act'' (S.C. 2013, c. 20) applies and can affect the division of assets in the case of divorce or separation (see ss 43, 46). | Furthermore, for First Nation Peoples living on reserves, the ''Family Homes on Reserves and Matrimonial Interests or Rights Act'' (S.C. 2013, c. 20) applies and can affect the division of assets in the case of divorce or separation (see ss 43, 46). | ||
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There are many other procedural options available to parties in Family Law disputes. Section 8 of the ''FLA'' requires counsel and other Family Dispute Resolution Professionals to discuss the advisability of the various types of family dispute resolution, which include those listed above as well as the following: | There are many other procedural options available to parties in Family Law disputes. Section 8 of the ''FLA'' requires counsel and other Family Dispute Resolution Professionals to discuss the advisability of the various types of family dispute resolution, which include those listed above as well as the following: | ||
* | * Family Law Arbitration. For more information see https://family.legalaid.bc.ca/visit/arbitrators | ||
* Med/Arb, which is a combination of both Mediation and Arbitration. | |||
* | * Judicial Settlement Conferences pursuant to Rule 7-2 of the ''Supreme Court Family Rules'' | ||
* | * Family Management Conferences pursuant to Rule 7(1) of the ''Provincial Court Family Rules'' | ||
* | * The use of a Parenting Coordinator to address ongoing parenting and communication issues between the parties after an order or agreement has been reached for the parenting arrangement. For more information see http://www.bcparentingcoordinators.com/ | ||
* | |||
== I. Availability of Divorce Services in BC == | == I. Availability of Divorce Services in BC == | ||
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[http://www.legalaid.bc.ca/ Legal Aid] will provide extremely limited assistance to those who meet their income requirements. Clients must also have a risk or history of family violence, or a risk or history of child abduction, to be eligible for this service. Legal Aid will not assist with divorces. | [http://www.legalaid.bc.ca/ Legal Aid] will provide extremely limited assistance to those who meet their income requirements. Clients must also have a risk or history of family violence, or a risk or history of child abduction, to be eligible for this service. Legal Aid will not assist with divorces. | ||
=== | === 2. Lawyers === | ||
All lawyers will expect an initial payment from their client. The amount of the initial retainer will vary depending on the lawyer’s hourly rate and | All lawyers will expect an initial payment from their client. The amount of the initial retainer will vary depending on the lawyer’s hourly rate and their estimation of the complexity of the case. The cost of a simple and uncontested divorce begins at approximately $1,500 and up. We advise clients to use the Lawyer Referral Service (604) 687-3221 or 1-800-663-1919. The 15 minutes of the initial consultation with the lawyer are free and conducted over the phone, with the lawyer charging a fee after the 15 minutes have elapsed. | ||
To minimize costs when retaining a lawyer, clients should be advised to: | To minimize costs when retaining a lawyer, clients should be advised to: | ||
* | *Negotiate the cost of legal services in advance, so they do not come as a surprise; | ||
* | *Collect all necessary documentation personally rather than paying the lawyer to do it; | ||
* | *Call the lawyer only when imparting necessary information (every phone call costs money); | ||
* | *Use Family Court and Supreme Court resources (such as Family Justice Counsellors) if appropriate; | ||
* | *Ask for regular or scheduled billing to monitor escalating legal costs; | ||
* | *Carefully read all correspondence sent by the lawyer; and | ||
* | *Treat the lawyer as a professional. | ||
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