The provincial Ministry of Health's Vital Statistics Agency is the government body that keeps track of peoples' births, their deaths, their Wills and their names. Under s. 3(1) of the Vital Statistics Act, one or both of the parents must file a "Registration of Live Birth" form with the agency within thirty days of the birth of a child. This is the form which will allows a parent to obtain the child's birth certificate.

The form must state, among other things: the name of the mother; the name of the father (if known and acknowledged); the gender of the child; the date of birth; and, the name given to the child.

The child's surname can be:

1. the name of either of the natural parents;
2. the name of one of the parents;
3. a combination of the parents' names; or,
4. another name entirely.

If one parent alone registers the birth with the agency, usually the mother, that parent has the final say on the child's name unless the father obtains a court order for a new surname.

A June 2003 decision of the Supreme Court of Canada found that fathers should have a say in their children's names, contrary to the provisions of the Vital Statistics Act in force at the time. This decision also affects the right of unacknowledged fathers to be listed on their children's birth certificates. On 4 June 2004, the act was amended to comply with the court's decision, and s. 4.1 now allows the courts of British Columbia to make an order changing a child's surname within an order delaring the man to be the child's father.

Now, while you're free to name your child as you wish, there are some limits. You've probably heard of Dweezel and Moon Unit Zappa, and probably know people named Sunshine and Starlight. Under s. 9 of the act, the agency's chief executive officer has the authority to refuse to register the birth — and consequently refuse to issue a birth certificate — for children whose names the chief executive officer believes:

While the chief executive officer rarely rejects a name, you should still be aware that this power exists.

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The phrase "Wills and estates" refers to the area of law that deals with the drafting and interpretation of Wills, how a dead person's estate is distributed when there is a valid Will, and how a dead person's estate is distributed when there isn't a valid Will. In family law, issues concerning a person's Will usually only arise when a couple have separated or are getting a divorce.

The validity and enforceability of Wills is goverened by the provincial Wills Act.

People are presumed to have a moral duty to provide for their immediate family under the provincial Wills Variation Act. Under that act, spouses and children who have not been provided for in a Will are able to challenge that Will and ask the court that they be included and receive a share of the dead person's estate.

A person who dies without leaving a Will is said to die "intestate." If a person dies intestate, their assets are dealt with according to the terms of the provincial Estate Administration Act. This piece of legislation requires a person's estate to be distributed in a certain way, with the surviving spouse receiving the first $65,000.00 of the estate, and sharing the remainder equally with the children.

Married Couples

The Effect of Marriage

Under s. 15 of the Wills Act, a Will is considered to be "revoked" or cancelled once a person marries. Unless you make a new Will after your marriage, you will be considered not to have a Will at all.

The Effects of Separation and Divorce

While a divorce won't cancel a Will, a divorce will cancel any portions of a Will which:

1. name the dead person's former spouse to act as the executor of his or her estate; or,
2. make the former spouse a beneficiary under the Will.

If a spouse dies intestate, only people who qualify as "spouses" can benefit from the provisions of the Estate Administration Act. If

1. the dead person has divorced; or,
2. an order declaring the marriage to be a nullity has been made,

a spouse will not be able to claim under the act.

If the dead person has only separated from his or her spouse, these provisions are irrelevant and the spouse may be entitled to inherit under this act, even if an action for divorce has started and even if the parties have been separated for twenty years. In the case of a couple who have been separated for more than a year following the death, however, the surving spouse must apply to court to share in the estate.

Common-Law Couples

Common-law couples, that is, couples who have lived together for more than two years in a romantic relationship, can also benefit from the provisions of the Estate Administration Act and the Wills Variation Act.

The Estate Administration Act defines "spouse" as including a common-law spouse who has lived with the dead person for a period of at least two years immediately before his or her death. This applies to both straight and same-sex couples.

The Wills Variation Act defines "spouse" as including a common-law spouse, but without the requirement that the spouses have lived together for the required two years immediately before the dead person's death. The couple could have been separated before death, and the surviving spouse will still be able to claim under this act. This applies to both straight and same-sex couples.

Planning Ahead

In order to avoid the problems which might arise from a separated spouse making a claim to the other spouse's estate, it is recommended that you change your Will once you have separated from your spouse.

If you are married and have separated, you should include wording in the new Will which to the effect that the new Will is being made with your divorce in mind, and stating that you do not wish to provide for your spouse. You should then prepare another new Will after the order for your divorce comes into effect.

If you are common-law, you should simply identify your former partner as your former common-law spouse, and state that you do not wish to provide for him or her in your Will, and why you do not wish to provide for him or her.

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Just as parents are responsible for providing the necessities of life for their children, adult children can be responsible for providing for their parents. Section 90 of the provincial Family Relations Act provides that:

An adult child is responsible for the support of his or her biological mother and father. Under s. 91, a parent can make an application for support pursuant to s. 90, or an agent of the provincial Attorney General (like a trustee from the Public Guardian and Trustee of British Columbia, for example) can make the application on behalf of the parent.

While the parental support provisions of the Family Relations Act are rarely made use of, there are a few general principles that come from the case law on this issue:

• The court will make an order that a child support his or her parent where the parent is unable to work, has no means to support him- or herself, or where the imcome the parent does have is indequate.
• The adult child's own economic circumstances will be taken into consideration when the court makes a support order.
• A parent doesn't have to show a history of economic dependance on his or her adult child to make a claim for support.
• The fact that a parent is estranged from his or her adult child is irrelevent to the parent's claim for support.

There are no fixed guidelines for parental support the way there are for child support. If parental support is ordered, that amount of support that will be payable will depend on the particular circumstances of each case.

Finally, in Smeland v. Smeland, a 1997 decision of the Supreme Court, the court held that a spouse required to provide support to the other spouse did not have the right to apply for parental support for the other spouse to defray his or her support obligation. In other words, if you are required to pay spousal support, you cannot make a claim from your adult children to reduce your own liability!

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Problems with the conflict of laws usually arise when:

1. spouses have property in different provinces or countries;
2. the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction; or,
3. the parties made a family agreement in one jurisdiction and have since moved to a new jursidiction.

The "conflict of laws" is a lawyer's way of referring to the problems that arise when the courts and laws of two or more different jurisdictions may apply to the same problem. The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.

Children

When a court order about children has been made under the federal Divorce Act, a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the act. The order that the spouse gets, however, will only be a "provisional order" and has no effect. The Attorney General is required to send the provisional order to the court which made the order, and that court will have a "confirmation hearing" under s. 19 of the act. If that court confirms the provisional order, the order will be changed.

Since the federal Divorce Act applies to the whole of Canada, it has effect throughout Canada. An order made under the Divorce Act may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

When a court order about children has been made under provincial laws, such as British Columbia's Family Relations Act, Alberta's Family Law Act or the Family Law Act of Ontario, the order can be "recognized" by the courts of a different province. An order about children that has been recognized will be treated as a order of the court that recognized the order for enforcement purposes.

Under Part 3 of the Family Relations Act, the courts of British Columbia can change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in meddling with the orders of another court. Our court will usually hear an application for an order different than the original order if:

1. the child normally lives in British Columbia; or,
2. the child is physically present in the province but will be at serious risk unless the original order is changed.

Child and Spousal Support

An order for child support or spousal support made under the Divorce Act may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

Under s. 5 of the Divorce Act, the courts of British Columbia will hear an application for an order different than the original order if:

1. either spouse normally lives in this province; or,
2. both spouses agree that our courts should deal with the matter.

Where a support order was made under the law of another province or territory, the order can be "registered" in the courts of British Columbia under the provincial Interjurisdictional Support Orders Act, and can be enforced as if the order were an order of our courts by the Family Maintenance Enforcement Program.

The Interjurisdictional Support Orders Act also allows for someone in British Columbia to start a process that could result in the order being changed by the court that made the order. More information about this process is described in the chapter "Child Support > Making Changes."

In addition to Canada's other provinces and territories, the Interjurisdictional Support Orders Act also applies to the orders of some other countries, including the UK, the United States, Australia and New Zealand.

Property

The provincial Family Relations Act is the only law in British Columbia that deals with the division of family assets between spouses. Since the act only applies to people and things located within British Columbia, people frequely have problems dealing with property located outside the province.

The following are the general rules about dealing with real property located outside British Columbia:

• A court in one province will not make orders affecting real property located in another jurisdiction.
• A court can, in certain circumstances, have authority over people in other jurisdictions, and sometimes over portable assets (like stocks, bonds, savings accounts, some kinds of chattels and so forth) located outside the province.
• A court can take into account the value of assets or property located outside the province in dividing assets located within the province.

There is usually a way to take into account personal property and real property located outside British Columbia in an action started in this province. If, however, all of the family assets are located outside the province, it is probably best to start an action there rather than here.

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Problems involving immigration usually crop up because one spouse has sponsored the other into Canada, or a spouse is concerned about deportation once the relationship ends. This segment is just an overview of some of these problems. If you have an immigration concern, you really should speak to a lawyer who practices that kind of law.

Permanent Resident Spouses

First, as long as you are a permanent resident in Canada, meaning that you're a landed immigrant, you won't be deported. Your spouse cannot force you to leave Canada.

Second, no matter what, your spouse still remains responsible to support you and your children. You will also remain entitled to claim a share in the family assets.

Third, while your spouse still has an obligation to support you as a sponsor, you will not lose your permanent resident status if you have to apply for welfare, although you will be expected to try and get support from your spouse. If your relationship ended because of abuse, you may not have to try and get support from your spouse; speak to your case worker right away.

Non-Resident Spouses

If you do not have permanent resident status, you must seek legal advice and help right away, as the breakdown of your relationship with your sponsor may affect your ability to remain in Canada, if that's in fact what you'd like to do. There are a number of agencies that help immigrants and refugees; seek them out immediately.

Sponsoring Spouses

If you have sponsored your spouse into Canada, you have certain obligations to continue to provide for your spouse's needs. These responsibilities are for a fixed amount of time, and you will have promised to support your spouse when you signed the immigration forms. You have these responsibilities in addition to your responsibilities under the Divorce Act and the Family Relations Act. A 2004 case of the British Columbia Supreme Court, Aujla v. Aujla, held that a sponsor's obligations under a sponsorship agreement was and obligation between the sponsor and the federal government, separate from the sponsor's obligation to pay spousal support under those acts.

If you are a sponsor and your relationship has ended, conact an immigration lawyer right away to find out exactly what your rights and obligations are.

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