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{{JP Boyd on Family Law TOC}} | {{JP Boyd on Family Law TOC}} | ||
The provincial ''[[Family Law Act]]'' is the primary legislation on family law issues in British Columbia. It applies to married spouses, unmarried spouses, and people in other unmarried relationships. It also applies to people who have an interest in someone else's children, like a family member or friend. The ''Family Law Act'' talks about the care of children after separation and about how guardians are appointed. It also deals with financial issues like child support, spousal support and the division of property and debt, as well as with family violence, court processes, and ways of resolving family law problems without going to court. | The provincial ''[[Family Law Act]]'' is the primary legislation on family law issues in British Columbia. It applies to married spouses, unmarried spouses, and people in other unmarried relationships. It also applies to people who have an interest in caring for someone else's children, like a family member or friend. The ''Family Law Act'' talks about the care of children after separation and about how guardians are appointed. It also deals with financial issues like child support, spousal support and the division of property and debt, as well as with family violence, court processes, and ways of resolving family law problems without going to court. | ||
This section provides a top to bottom overview of the ''[[Family Law Act]]'' in an easy-to-read question and answer format. It is written primarily for justice system workers and legal advocates, but anyone can use it. All of the information provided in this section is discussed in more detail elsewhere in ''JP Boyd on Family Law''. Use the search tool at the top of the page to find more information about specific topics. | This section provides a top to bottom overview of the ''[[Family Law Act]]'' in an easy-to-read question and answer format. It is written primarily for justice system workers and legal advocates, but anyone can use it. All of the information provided in this section is discussed in more detail elsewhere in ''JP Boyd on Family Law''. Use the search tool at the top of the page to find more information about specific topics. | ||
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===Who does the ''Family Law Act'' apply to?=== | ===Who does the ''Family Law Act'' apply to?=== | ||
The ''[[Family Law Act]]'' is the main law on family breakdown in British Columbia. (Although there is also the federal ''[[Divorce Act]]'', the '' | The ''[[Family Law Act]]'' is the main law on family breakdown in British Columbia. (Although there is also the federal ''[[Divorce Act]]'', the ''Divorce Act'' only applies to married spouses.) The ''Family Law Act'' applies to everyone in a family relationship in British Columbia, including people who: | ||
*are married spouses, | *are married spouses, | ||
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*want to manage a child’s property. | *want to manage a child’s property. | ||
The '' | The ''Family Law Act'' doesn’t change the ''Divorce Act''. The ''Divorce Act'' also applies to people who are married, along with the ''Family Law Act''. | ||
===How are family law problems resolved under the ''Family Law Act''?=== | ===How are family law problems resolved under the ''Family Law Act''?=== | ||
The ''[[Family Law Act]]'' tries to change how people solve family law problems. | The ''[[Family Law Act]]'' tries to change how people solve family law problems. The law: | ||
*encourages people to find solutions to family law problems outside of court, | |||
*encourages people to find solutions outside of court, | *makes financial disclosure mandatory, even when people are dealing with a family law problem outside of court, | ||
*makes financial disclosure mandatory, even when | |||
*makes family law agreements more difficult to change, as long as they were fairly negotiated, and | *makes family law agreements more difficult to change, as long as they were fairly negotiated, and | ||
*promotes the use of parenting coordinators, when there is a final agreement or order about the care of children. | *promotes the use of parenting coordinators, when there is a final agreement or order about the care of children. | ||
When people have to go to court, however, the '' | When people have to go to court, however, the ''Family Law Act'' gives the court new ways to: | ||
*protect people who are at risk of family violence, | *protect people who are at risk of family violence, | ||
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*managing children’s property. | *managing children’s property. | ||
The ''Act'', in other words, covers everything except adoption, child protection and wills | The ''Act'', in other words, covers everything except adoption, child protection and wills and estates problems! | ||
==The law about children== | ==The law about children== | ||
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===How are decisions about children made?=== | ===How are decisions about children made?=== | ||
The ''[[Family Law Act]]'' says that parents, judges, and other decision-makers must make decisions about children considering only the children’s best interests and nothing else. | The ''[[Family Law Act]]'' says that parents, judges, and other decision-makers, including arbitrators, must make decisions about children considering only the children’s best interests and nothing else. | ||
====Determining the best interests of children==== | ====Determining the best interests of children==== | ||
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*the ability of a person to meet the child’s needs. | *the ability of a person to meet the child’s needs. | ||
Views of the child reports can also be ordered under s. 37(2)(b). These reports usually just describe the child’s views without making an assessment or recommendations, and are often much cheaper and faster to get than | Views of the child reports can also be ordered under s. 37(2)(b). These reports usually just describe the child’s views without making an assessment or recommendations, and are often much cheaper and faster to get than a full parenting assessment under s. 211. | ||
===Who is a parent?=== | ===Who is a parent?=== | ||
Under the '' | Under the ''Family Law Act'', a child’s parents are presumed to be the child’s birth mother and biological father. If the court is not sure who the child’s father is, the court can order medical tests to determine who the father is under s. 33. | ||
When people have a child through assisted reproduction, a person who donates eggs or sperm is not presumed to be a parent. However, a woman who is a surrogate mother is presumed to be a parent. The '' | When people have a child through assisted reproduction, a person who donates eggs or sperm is not presumed to be a legal parent. However, a woman who is a surrogate mother is presumed to be a parent, and her spouse may also be a legal parent. The ''Family Law Act'' lets people make agreements when they have a child through assisted reproduction. These agreements can say who is a parent and who isn’t. The people who can be a parent under an assisted reproduction agreement are: | ||
*up to two people who want to have the child, | *up to two people who want to have the child, | ||
*a donor of sperm, | *a donor of sperm, | ||
*a donor of eggs, | *a donor of eggs, | ||
*a surrogate mother and the spouse of the surrogate mother. | *a surrogate mother, and | ||
*the spouse of the surrogate mother. | |||
As a result, a child can have more than two parents under the ''Family Law Act''. The courts have yet to figure out how child support <span class="noglossary">will</span> work in situations like this. | |||
===Who is a guardian?=== | ===Who is a guardian?=== | ||
Under the '' | Under the ''Family Law Act'', the people who are responsible for caring for a child are ''guardians''. A child can have one guardian, two guardians, or more than two guardians. Most of the time, a child’s parents <span class="noglossary">will</span> be the child’s guardians, as long as the parents have lived with the child. A parent who never lived with a child isn’t a guardian unless: | ||
*the court makes an order that the parent is a guardian, | *the court makes an order that the parent is a guardian, | ||
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===What happens if a guardian can’t exercise parental responsibilities?=== | ===What happens if a guardian can’t exercise parental responsibilities?=== | ||
If a guardian is temporarily unable to exercise their parental responsibilities, the guardian can authorize someone else to manage certain responsibilities. This person doesn’t become a guardian but can: | If a guardian is temporarily unable to exercise their parental responsibilities, the guardian can authorize someone else to manage certain responsibilities. This person doesn’t become a guardian but can be given the power to: | ||
*make decisions about the day-to-day care of the child, | *make decisions about the day-to-day care of the child, | ||
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*give or withhold permission on behalf of a child, like about going on a school field trip or having a medical treatment. | *give or withhold permission on behalf of a child, like about going on a school field trip or having a medical treatment. | ||
This is useful when a guardian is going to be sick or <span class="noglossary">will</span> be out of town for a period of time and someone else needs to care for the child, or if a child from outside British Columbia <span class="noglossary">will</span> be going to school here and an adult is needed to care for the child. | This is useful when a guardian is going to be sick or <span class="noglossary">will</span> be out of town for a period of time and someone else needs to care for the child, or if a child from outside British Columbia <span class="noglossary">will</span> be going to school here and an adult is needed to care for the child and the child's affairs. | ||
===What happens if a guardian has a terminal illness or dies?=== | ===What happens if a guardian has a terminal illness or dies?=== | ||
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The time a guardian has with a child is called ''parenting time''. During a guardian’s parenting time, the guardian is responsible for the care of the child and has the right to make day-to-day decisions for the child. | The time a guardian has with a child is called ''parenting time''. During a guardian’s parenting time, the guardian is responsible for the care of the child and has the right to make day-to-day decisions for the child. | ||
The time that someone who isn’t a guardian has with a child is called ''contact''. Parents who aren’t guardians, other relatives of a child, and people who aren’t a child’s relative can have contact with the child. Someone with contact ''does not'' have the right to make day-to-day decisions for the child. | The time that someone who isn’t a guardian has with a child is called ''contact''. Parents who aren’t guardians, grandparents and other relatives of a child, and people who aren’t a child’s relative can have contact with the child. Someone with contact ''does not'' have the right to make day-to-day decisions for the child. | ||
===How do agreements and orders about parenting time and contact work?=== | ===How do agreements and orders about parenting time and contact work?=== | ||
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Agreements about parenting time and contact can be made by the child’s guardians. The court can make orders about parenting time and contact. Both the Provincial Court and the Supreme Court can make orders about parenting time and contact. | Agreements about parenting time and contact can be made by the child’s guardians. The court can make orders about parenting time and contact. Both the Provincial Court and the Supreme Court can make orders about parenting time and contact. | ||
Agreements and orders about parenting time and contact can set a fixed schedule of time with a child or they can say that the parenting time or contact will happen when everyone agrees, as the child prefers or on some other term. Parenting time and contact can also be on conditions, for example that the person will not smoke or drink during their time with the child, or be supervised. | Agreements and orders about parenting time and contact can set a fixed schedule of time with a child or they can say that the parenting time or contact will happen when everyone agrees, as the child prefers or on some other term. Parenting time and contact can also be on conditions, for example that the person will not smoke or drink during their time with the child, or be supervised by a third party. | ||
Remember that only guardians have parenting time. Everyone else has contact with a child. | Remember that only guardians have parenting time. Everyone else has contact with a child. | ||
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When a guardian objects, the guardian who wants to move must show the court that: | When a guardian objects, the guardian who wants to move must show the court that: | ||
*they want to move | *they want to move in good faith, and | ||
*they have proposed reasonable plans to preserve the child’s relationship with the child’s other guardians, with people who have contact with the child, and with others who have an important role in the child’s life. | *they have proposed reasonable plans to preserve the child’s relationship with the child’s other guardians, with people who have contact with the child, and with others who have an important role in the child’s life. | ||
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*the spouse has contributed to the child’s <span class="noglossary">costs</span> for at least one year, and | *the spouse has contributed to the child’s <span class="noglossary">costs</span> for at least one year, and | ||
*the claim for child support is made within one year of the | *the claim for child support is made within one year of the stepparent's last contribution to the child’s <span class="noglossary">costs</span>. | ||
Remember that under the ''[[Divorce Act]]'', a stepparent is someone who is married to a parent and "stands in the place of a parent." This is a different legal test. | Remember that under the ''[[Divorce Act]]'', a stepparent is someone who is married to a parent and "stands in the place of a parent." This is a much different legal test. | ||
===How is the amount of child support calculated?=== | ===How is the amount of child support calculated?=== | ||
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If the payor has a life insurance policy, the parties can agree and the court can order that the payor keep the policy up to date and name a person, usually the recipient, as the beneficiary of the policy. This way, the child <span class="noglossary">will</span> still be supported if the payor dies. | If the payor has a life insurance policy, the parties can agree and the court can order that the payor keep the policy up to date and name a person, usually the recipient, as the beneficiary of the policy. This way, the child <span class="noglossary">will</span> still be supported if the payor dies. | ||
The parties can agree and the court can order that the payor’s obligation to pay child support <span class="noglossary">will</span> continue after the payor’s death and be paid from | The parties can agree and the court can order that the payor’s obligation to pay child support <span class="noglossary">will</span> continue after the payor’s death and be paid from the payor's estate. Court orders about this can be made at the time the child support order is made or after the payor’s death. | ||
==The law about spousal support== | ==The law about spousal support== | ||
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===Who is entitled to ask for spousal support?=== | ===Who is entitled to ask for spousal support?=== | ||
Only spouses can ask for spousal support. Under the ''Family Law Act'', for the purposes of spousal support, ''spouse'' includes people who: | Only spouses can ask for spousal support. Under the ''[[Family Law Act]]'', for the purposes of spousal support, ''spouse'' includes people who: | ||
*are married to each other or used to be married to each other, | *are married to each other or used to be married to each other, | ||