Family law in British Columbia

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There are two courts that handle almost all family law litigation in British Columbia, Canada: the Provincial (Family) Court and the Supreme Court. Each court has its own rules, its own forms, and its own process.[1]

There are two main laws that apply to family law problems in BC. A law, in this sense of the word, means a rule made by the government. These laws are the federal Divorce Act and the provincial Family Law Act. Each law deals with different issues, although they share a lot of issues in common. For some couples, both laws will apply; for others, only one of these laws will apply, probably the Family Law Act.

You don't have to go to court, no matter how bad your problem is. The only times you must go to court are when:

  • you need a divorce,
  • someone is threatening to do something serious, like take the children away,
  • there is a risk of violence,
  • someone is threatening to hide property or money, or
  • you just can't agree about how to fix the problem no matter how hard you try.

If you don't have to deal with one or more of these issues, you can always try to negotiate a way of fixing the problem, to find a solution that you both agree with. Couples who need help negotiating sometimes hire someone else to help, someone who is usually a stranger to them, called a mediator. Mediators help to guide the negotiation process and encourage people to see different ways of solving the problem.

Lawyers who mediate family law problems are called family law mediators, and have special training in mediation apart from their training as lawyers. Because there are no rules in British Columbia about who can and who can't call themselves a mediator, you should look carefully at the mediator's credentials before you agree to use that person as your mediator.

Common family law problems[edit]

Couples who live together and couples who don't, couples who are married and couples who are not can all have family law problems when their relationships end. In British Columbia family law affects same-sex couples in exactly the same way that it affects opposite-sex couples. The sorts of problems a couple can have when their relationship ends include deciding how the children will be cared for, whether support should be paid, and who will keep which property and which debt.

Family law problems about children are:

  • parenting time or custody, which include deciding where the children will live for most of the time,[2]
  • parental responsibilities or custody, which include deciding how the parents will make decisions about important things in the children's lives, about issues like health care and education, and
  • parenting time, contact or access, which are about deciding how much time each parent will have with the children.

Support means money that one person pays another to help with that person's expenses. Family law problems about support are:

  • child support, money that is paid to help with expenses for the children, like clothing and food,[3] and
  • spousal support, money that is paid to help with a spouse's day-to-day living expenses, like rent, the phone bill and the hydro bill, and sometimes to compensate a spouse for the economic decisions made during the relationship.[4]

When a couple have property, sometimes including when only one person has property, they have to decide if and how that property will be shared between them. In family law, the property married spouses and unmarried spouses share is called family property, generally only the property that accumulated during a relationship. Family property can include things like houses, bank accounts, and cars. It can also include RRSPs and pensions.

Sometimes a couple also has to decide who will take responsibility for debts. Generally, only the debts that accumulated during a relationship will be shared between married spouses and unmarried spouses.[5]

Married spouses also have to decide about whether they want to get divorced. Divorce is the legal end of a marriage, and only a judge can make you divorced. Most married spouses whose relationship has ended want to get divorced, but it's usually a low priority. Couples who are not married, including unmarried spouses, never need to get divorced.

As you can see, the sorts of family law problems a couple can have sometimes depends on what their relationship was like. In family law, there are three types of relationship:[6][7]

  1. Unmarried couples. An unmarried couple probably think of themselves as boyfriend and girlfriend. They may have lived together, but not for too long. Sometimes an unmarried couple involved in a family law problem will have been together only for a very short while ― perhaps just long enough to make a baby.
  2. Unmarried spouses. Unmarried spouses are not legally married. Unmarried spouses have lived together in a loving relationship, and, for most purposes of the Family Law Act, must have lived together for at least two years or for less than two years if the couple have had a child together.
  3. Married spouses. Married spouses have been legally married, by a marriage commissioner or a religious official licensed to perform marriages, and their marriage has been registered with the government where they were married.

The courts of British Columbia[edit]

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. The Court of Appeal is the highest court in the province and the Provincial Court is the lowest. Most family law litigation happens in the Provincial Court and the Supreme Court.[8]

The branch of the Provincial Court that deals with family law is called the Provincial (Family) Court. Other branches of the Provincial Court include the Provincial (Youth) Court and the Provincial (Small Claims) Court. When this wiki talks about the Provincial (Family) Court, it will just say the "Provincial Court." The Provincial Court can deal with:

  • guardianship of children under the Family Law Act,
  • parental responsibilities, parenting time and contact under the Family Law Act,
  • child support,
  • spousal support, and
  • orders protecting people.

The Supreme Court can deal with all family law problems. On top of issues about the guardianship and the care of children, child support and spousal support under the Family Law Act, this court can also deal with:

  • divorce,
  • custody and access under the [1],
  • dividing family property and family debt, and
  • orders protecting property.

This chart shows which court can deal with which problem:

Supreme Court Provincial Court
Divorce Yes
Care of children Yes Yes
Time with children Yes Yes
Child support Yes Yes
Children's property Yes
Spousal support Yes Yes
Family property and
family debt
Yes
Protection orders Yes Yes
Financial restraining orders Yes

To get to court, you must start a court proceeding and tell the court what you want. In the Provincial Court, proceedings are started with a court form called an Application to Obtain an Order. In the Supreme Court, the court form is called a Notice of Family Claim. In the Provincial Court, the person who starts a court proceeding is called the applicant; in the Supreme Court, this person is the claimant.[9]

Once a court proceeding has started, the person whom the proceeding has been brought against can answer the claims being made and make new claims. In the Provincial Court, this answer is called a Reply. In the Supreme Court, two court forms can be used: a Response to Family Claim and a Counterclaim. In the Provincial Court and in the Supreme Court, the person answering a court proceeding is called the respondent.

Applicants and respondents (in the Provincial Court), and claimants and respondents (in the Supreme Court), are called the parties to the court proceeding.

After the respondent has filed a reply to the claim, both parties can ask the court to make an order about some or all of the issues raised in the court proceeding. An order is a decision of a judge that requires someone to do something or not do something. For example, a court can make an order that a child live mostly with one party, an order that one party not harass the other, or an order that one party have the family car.

Orders can be made by consent, which means that they are made with the agreement of both people. If the couple can't agree on the terms of the order, they must go to a hearing before a judge and have the judge decide the terms of the order. There are two types of order: an interim order, which is any order made before trial; and, a final order, which is an order made at the end of a trial. A trial is the final hearing before a judge that concludes the court proceeding.

If you don't like the order you get from the judge, you can sometimes challenge the order before a higher level of court in a court proceeding called an appeal. An order of the Provincial Court is appealed to the Supreme Court. An order of the Supreme Court is appealed to the Court of Appeal. You cannot appeal an order that you agreed to.

Over time, the terms of an order may need to be changed. If there has been a serious change in your circumstances or in the circumstances of the children since an order was made, you can go back to court and ask that the order be changed to suit the new circumstances. This is called varying an order.

The law[edit]

There are two kinds of law: laws made by the governments, called legislation, statutes or acts; and, laws made by the courts. Laws made by the courts are known as the common law, precedent decisions or case law. They come from the different proceedings that the courts have heard over hundreds of years, and the decisions the courts have made in those different proceedings.[10]

Legislation is made by the federal government and the provincial government. The two pieces of legislation that are the most important for family law in British Columbia are the federal Divorce Act and the provincial Family Law Act. Each piece of legislation deals with different family law problems and applies to different kinds of relationships.[11]

The Divorce Act only applies to people who are married or who used to be married to each other. It deals with:

  • divorce,
  • custody,
  • access,
  • child support, and
  • spousal support.

The Family Law Act applies to married spouses, unmarried spouses, and unmarried couples who are neither married spouses nor unmarried spouses and are perhaps just dating. This law deals with:

  • guardianship of children,
  • parental responsibilities and parenting time,
  • contact,
  • child support,
  • spousal support,
  • dividing family property and family debt,
  • orders protecting people, and
  • orders protecting property.

Unmarried couples can only use the Family Law Act to ask for orders about the care of children, child support, and orders protecting people. Married spouses and unmarried spouses can use the act to ask for orders about the care of children, child support, and orders protecting people, as well as orders about spousal support, property and debt, and orders protecting property.

The Supreme Court can make orders under both the Divorce Act and the Family Law Act. The Provincial Court can only make orders under the parts of the Family Law Act that don't deal with property.

This chart shows which law deals with which issue:

Family Law Act Divorce Act
Divorce Yes
Care of children Guardianship and
parental responsibilities
Custody
Time with children Parenting time or
contact
Access
Child support Yes Yes
Children's property Yes
Spousal support Yes Yes
Family property and
family debt
Yes
Protection orders Yes
Financial restraining orders Yes

There is a bunch of other legislation that deals with family law problems, such as the Adoption Act (which deals with adoption), the Name Act (which deals with changing your name and your children's names), the Land Title Act (which has to do with land and houses), and the Vital Statistics Act (which has to do with registering births, deaths, marriages, and divorces). The most important of these other laws is the Child Support Guidelines.[12]

The Child Support Guidelines sets out the rules about how much child support should be paid according to the income of the person paying child support and the number of children child support is being paid for. For most people, the amount that should be paid is set out in a table at the end of the Guidelines. The Guidelines also sets out the rules about when child support can be paid in an amount different from what the tables say should be paid.

Parenting Time and Guardianship of the Children[edit]

There are three things that parents must decide when their relationship ends: where the children will mostly live; how the parents will make decisions about the important events in the children's lives; and how much time each parent will have with the children.[13]

The Divorce Act talks about these issues in terms of custody and access. Custody sort of means where the children live most of the time, but separated parents can both have custody, called joint custody, and not have anywhere close to half of the children's time. In cases like this, joint custody means an equal right to participate in making decisions about the children. Access is the word used to describe the schedule of the child's time between the parents.[14]

The Family Law Act talks about these issues in terms of parental responsibilities, parenting time and contact. Generally, natural parents of a child are his or her 'guardians' under the Family Law Act. Guardians generally share parental responsibilities and parenting time with their children, unless a court provides otherwise. Someone who isn't a guardian, which might include a grandparent, step-parent or parent who isn't a guardian, can have contact with a child.

Parental responsibilities include making decisions about where the children go to school, how they are treated when they get sick, whether they will play sports or take music lessons, and about the religion they will be taught. Parental responsibilities can be shared between guardians or divided between them, so that only one guardian can make decisions about a particular parenting issue. When more than one guardian share a parental responsibility, the guardians must try to work together to make decisions about that issue.

Parenting time and contact are the terms used to describe the schedule of the child's time between guardians and between guardians and people who are not guardians.[15]

Child support[edit]

Child support is normally paid by the parent who has the children for the least amount of time to the parent who has the children for the most amount of time. Child support is paid to help with the children's day-to-day living expenses, and covers a lot of things, from new clothes to school supplies to the children's share of the rent. Child support is not a fee a parent must pay to see the children. Child support has nothing to do with custody or guardianship; it has nothing to do with access, parenting time or contact; it has nothing to do with whether a parent is a good parent or a bad parent. A parent has a duty to pay child support just because he or she is a parent.[16]

Child support is almost always paid each month, in the amount set out in the Child Support Guidelines. A parent's duty to pay child support does not end until the child turns 19. It can last longer than that if a child has an illness or disability that prevents the child from earning a living, or if the child is going to university or college full-time.[17]

Normally a parent pays the exact amount of child support the Guidelines tables say should be paid. A parent can pay a smaller amount if the children's time is shared almost equally between the parents, if one or more children live with each parent, or if paying the amount required by the Guidelines would cause serious financial hardship.

The basic amount of child support is intended to cover most of the children's expenses. Some expenses, called special or extraordinary expenses, are not covered in this basic amount. Typically, extraordinary expenses are expenses like daycare and orthodontics — big, important expenses that most but not all children need. Where the children have extraordinary expenses, the parents contribute to those expenses in proportion to their incomes. For example, if one parent earns $30,000 per year and the other earns $20,000, the first parent would have to pay 60% of an extraordinary expense and the other would have to pay 40%.

Spousal support[edit]

Spousal support is money paid by one spouse to the other for one of two reasons. Spousal support may be paid to help the other spouse meet his or her living expenses, or it may be paid to compensate a spouses for the economic consequences of the decisions made during the relationship. Spousal support is not automatically payable just because a couple were in a married or unmarried spousal relationship; the person who needs support must prove that he or she is entitled to get support.[18]

The decisions made by a couple during their relationship can cause a spouse to be entitled to compensation if those decisions took the spouse out of the paid workforce, required them to move to a place where there was less financial opportunity, prevented the spouse from taking a promotion or have made it more difficult for the spouse to get a job after separation. Say, for example, a couple decided that one of them should quit work and stay at home to raise the children and be a homemaker. A spouse who stays at home may have to leave a job or a career, and it can be very difficult to return to work after being out of the workforce, particularly when the relationship was long and there is no career to return to.

The end of a relationship can cause a spouse to need financial help. After a couple separate, the same amount of money they had during the relationship now has to pay for two rent bills, two hydro bills and two grocery bills. When the couple were together, however, their combined incomes only had to pay for one rent bill, one hydro bill and one phone bill.

Spousal support is usually paid every month, although it can be paid in a large, single payment. The amount of spousal support that should be paid is usually an amount that the person with more money can afford to pay, using the money left over after that person's basic living expenses have been paid.

When a relationship was very long or the couple are older, spousal support can be paid forever or until they both get pensions or government benefits like CPP. When the couple is younger, spousal support is usually only paid for a specific amount of time. This is because the person getting support has an obligation to try to become financially independent from the person paying support.

The amount of spousal support that should be paid and the length of time support should be paid can also be calculated using the Spousal Support Advisory Guidelines. The Advisory Guidelines uses two formulas, one for when a couple has children and one for when they don't, that calculate how much support should be paid according to the length of the relationship and each party's annual income.

There are three very important things to know about the Advisory Guidelines:

  1. The Advisory Guidelines is not a law and there is no rule saying that the Advisory Guidelines formulas must be used. Despite this, lawyers and the court use the Advisory Guidelines almost all the time when spousal support is going to be paid.
  2. The Advisory Guidelines is only used when someone is proven to be entitled to receive support; if there is no entitlement, the Advisory Guidelines doesn't apply.
  3. The formulas the Advisory Guidelines describes are very complicated. In particular, the formulas that are used when a couple has children cannot be done without a computer program.

Only people who are married spouses or unmarried spouses can ask for spousal support. Married spouse must ask for spousal support within two years of their divorce. Unmarried spouses must ask for spousal support within two years of their separation.

Dividing family property and family debt[edit]

Married spouses and unmarried spouses who have lived together for at least two years are each entitled to half of the family property when their relationships end.[19] Family property includes:

  • the property the spouses got during their relationship, including real estate as well as personal property,
  • bank accounts, investments, RRSPs and pensions,
  • the interest of a spouse in a company, business or partnership,
  • debts owed to a spouse, and
  • the increase in value of "excluded property" during the relationship.

Each spouse is entitled to keep all of his or her excluded property. Excluded property includes:

  • the property owned by each spouse on the date they began to live together or the date they married, whichever is earlier,
  • gifts or inheritances received during the relationship,
  • certain kinds of court awards and insurance payments made during the relationship, and
  • property bought during the relationship with excluded property.

Each spouse is also responsible for half of the family debt. Family debt includes:

  • all debts incurred by either spouse during the relationship, and
  • debt incurred after separation, if the debt was incurred to maintain family property.

The spouses' right to a share in the family property and obligation to share in the family debt happens when the spouses separate. Separation doesn't always happen when someone moves out. Spouses can be separated while living together, as long as one of them has said the relationship is over and then the couple has behaved as if it was over, for example by stopping sleeping together or eating together, and stopping doing chores for each other.

Separation and divorce[edit]

You don't need a legal document to separate, and you don't need to see a lawyer or a judge to separate. You just leave the relationship or announce that it's over and then behave like it's over. There is no such thing as a legal separation in British Columbia.[20]

For unmarried spouses and other unmarried couples, their relationship is over the moment they separate. There is no such thing as a "common-law marriage," and unmarried spouses don't need to get divorced.

For a marriage to end, however, married spouses must divorce, and that means they must get a court order saying that they are divorced. A married couple can be separated for many years but still be married if they haven't gotten a divorce order.

Sometimes married people don't get around to getting a divorce for many, many years. That's fine. The only thing a separated married person can't do that an unmarried person can do is marry again. Separated married people can date someone else, live with someone else, be in an unmarried relationship with someone else, have property in their own name, have bank accounts and credit cards in their own name, and so on.

There are three reasons why a court will make a divorce order:

  1. the couple have separated and have stayed separated for more than one year,
  2. one spouse has had sex with someone other than his or her spouse, called adultery, or
  3. one spouse has been verbally, emotionally or physically abusive to his or her spouse, which is what the Divorce Act means by cruelty.

To get a divorce order, you have to start a court proceeding. You don't have to ask the court for anything else except a divorce. When a couple agrees to get a divorce, they can get a divorce using the do-it-yourself desk order process, and they won't have to go in front of a judge ever.

Family law agreements[edit]

A family law agreement is a contract, like the contract you might have with your landlord or your employer, or the contract you might have if you leased a car.

There are three kinds of agreement a couple can make in family law:[21]

  1. cohabitation agreements, agreements that a couple may make when they are living together or plan to living together,
  2. marriage agreements, which a couple may want if they are going to be getting married, and
  3. separation agreements, which a married or unmarried couple may make after their relationship ends.

Cohabitation agreements and marriage agreements are for couples who are just starting a relationship. These sorts of agreements can talk about how the relationship will be managed (who will pay the bills, will there be a joint bank account or a joint credit card, or who will do what parts of the housework), but most often they talk about what will happen if the relationship ends. These agreements are usually meant to stop a couple from fighting after a relationship ends by setting out who will get what right from the start.

The law does not require that a couple make a cohabitation agreement or a marriage agreement when they start to live together or marry. You don't have to sign an agreement like this if you don't want to.

Cohabitation agreements and marriage agreements are not for everyone. People who are bringing a lot of property, money, or children into a relationship may want a cohabitation agreement or a marriage agreement. People who don't have property or children, are young, and expect to have a long-term relationship may not need an agreement.

Separation agreements are made after a relationship has ended. They talk about how a couple has agreed to deal with things like the care of children, child support and spousal support, and how the family assets will be shared. Separation agreements don't have to cover all the family law problems a couple have. They can deal with just some of those problems and leave the rest for the court to decide.

Normally a couple talk together about the issues and try to make an agreement that they are both happy with. It is unusual for just one person to make the separation agreement without talking to the other person. You do not have to sign a separation agreement if you don't want to.

No matter what kind of family law agreement you have signed, you both expect that each of you will follow the agreement, and that the court will enforce the agreement if you don't follow it. The court will generally respect an agreement that a couple willingly signed, as long as the agreement was fair and neither person misled the other person about something important, like money or property.

Sources[edit]

Boyd, John-Paul. "JP Boyd on Family Law". Clicklaw Wikibooks. Retrieved 28 September 2013. , in particular the article on Family Law in British Columbia. Material was copied with permission pursuant to a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.

Yousefi, Leena. "YLaw Family Law". YLaw. Retrieved 28 April 2017. , Material was copied with permission pursuant to a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.