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People involved in a family law dispute may also come into contact with secondary laws that also impact on family law issues, such as the Name Act or the Adoption Act. Still other laws, like the Land Title Act, which weren't written with family law specifically in mind, may also be relevant, depending on the issues at hand. This chapter will describe the primary legislation dealing with family and divorce law, and briefly review the secondary legislation that touches on family law issues. Links to all of the legislation relevant to family law are provided in the section "Resources & Links." The Primary Legislation The Divorce Act, the Family Relations Act and the Child Support Guidelines are central to family law. While some of the subjects covered by the Divorce Act and the Family Relations Act overlap, there are significant distinctions between the two that you should be aware of. The essential difference between the two lies in the different authority that the federal and provincial governments have to make legislation, set out in our Constitution. See the chapter "The Legal Process > The Law" for a more detailed discussion of the federal and provincial jurisdictions. Only the Divorce Act deals with divorce. Only the Family Relations Act deals with the guardianship of children and the division of assets. Both acts deal with child custody, child access, child and spousal support and foreign family law orders. One of the most important distinctions between these two statutes, as will be seen below, lies in how they define key words like "spouse" and "child." Depending on the particular piece of legislation you're dealing with, you may fall inside these definitions or outside of them. The Divorce Act The Divorce Act is a piece of federal legislation. Because of a constitutional rule called the doctrine of paramountcy, the Divorce Act is "superior" to the provincial Family Relations Act. As a result, if you are entitled to seek relief under the Divorce Act, you should. The Divorce Act only applies to spouses — people who are or were formally married to each other in a ceremony presided over by a marriage commissioner or a religious functionary authorized to perform marriages. If you are not legally married, the Family Relations Act is the only game in town. The court may, however, allow a non-spouse to apply under the Divorce Act for an order relating to custody of or access to a child, but that person must get the court's permission first, and the spouses must have already started a law suit between each other. You must also be "ordinarily resident" in your province for at least one year before you can seek relief under the Divorce Act. The Divorce Act refers to children as "children of the marriage." Children of the marriage are defined as: A child of two spouses or former spouses who, at the material time,(a) is under the age of majority and who has not withdrawn from their charge, or(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. The Divorce Act covers these subjects:
Click here to link to the Divorce Act. The Family Relations Act The Family Relations Act is a statute created by the government of British Columbia. Both married and unmarried people may apply for relief under this act. Section 1(1) of the Family Relations Act defines a child as "a person who is under the age of 19 years." For the purposes of child support, however, s. 87 defines a "child" as follows: "child" includes a person who is 19 years of age or older and, in relation to the parents of the person, is unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life The importance of this definition, which intentionally mirrors the federal Divorce Act, is to extend child support to children over the age of 19 who are unable to withdraw from their parent's care. A parent, a term not defined in the Divorce Act, is defined in the Family Relations Act as including: (a) a guardian or guardian of the person of a child, or (b) a stepparent of a child if (i) the stepparent contributed to the support and maintenance of the child for at least one year, and(ii) the proceeding under this Act by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child. A spouse is defined as: A person who(a) is married to another person,(b) except under Parts 5 and 6, lived with another person in a marriage-like relationship for a period of at least 2 years if the application under this Act is made within one year after they ceased to live together and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender,(c) applies for an order under this Act within 2 years of the making of an order(i) for dissolution of the person's marriage,(ii) for judicial separation, or(iii) declaring the person's marriage to be null and void, or(d) is a former spouse for the purpose of proceedings to enforce or vary an order. The significance of this definition is that common-law couples have rights against each other with respect to spousal support and certain restraining orders, but common-law couples cannot make a claim under Parts 5 and 6 of the Family Relations Act, the parts which deal with the division of property and pensions. Unmarried, non-common-law couples cannot make a claim against each under the act except for orders dealing with children and child support, and certain other restraining orders. Please see the section "Unmarried Couples" for more information about the rights of unmarried and common-law couples under the act. The Family Relations Act covers these subjects:
Click here to link to the Family Relations Act. The Child Support Guidelines The Child Support Guidelines is a federal regulation, which standardizes and regulates child support orders throughout Canada. The Guidelines are a lot like tax tables, you look at the column which corresponds to the number of children you have, you find the row which corresponds to your income and there you have the amount of child support you can expect a court to require be paid. The Child Support Guidelines apply to child support orders made under both the Divorce Act and the provincial Family Relations Act. The Guidelines, and the exceptions to the Guidelines, are discussed in a lot more detail in the section "Child Support." Click here to link to the Child Support Guidelines. The Spousal Support Advisory Guidelines The draft proposed Spousal Support Advisory Guidelines is not a law. It is an academic paper that describes mathematical formulae that can be used to calculate how much spousal support should be paid and how long spousal support should be paid, once a person's entitlement to receive spousal support has been proven. The Advisory Guidelines formulae, and the way the courts have dealt with the Advisory Guidelines, is discussed on more detail in the chapter "Spousal Support > The Advisory Guidelines." The first draft of the Advisory Guidelines — the only version of the Advisory Guidelines published to date — is available for download and review at the website of the federal Department of Justice A second draft is expected to be published some time in 2006 or early 2007. Back to the top of the page. The Secondary Legislation This segment discusses some of the secondary legislation relating to marriage, children, child protection, the enforcement of orders and agreements relating to support payments, real property, Wills and estates, and name changes. Marriage The federal Marriage (Prohibited Degrees) Act sets out the minimum degrees of consanguinity — relatedness by blood — a couple may have in order to validly marry. The federal Civil Marriage Act defines marriage as the "union of two person" rather than "the union of a man and a woman," and makes related changes to other federal legislation like the Divorce Act and the Income Tax Act. The provincial Marriage Act deals with the formalities of marriage, and covers such things as who is entitled to marry people, marriage licences, and the age at which a couple can legally marry. See the chapter "Marriage & Divorce > Marriage" for more information about the marriage, marriages that can be annuled and marriages that are considered to be void. Children The provincial Age of Majority Act sets the age of majority at 19. The provincial Infants Act sets out the legal capacities of children, such as their ability to enter into a proper contract or marriage settlement. The provincial Adoption Act deals with such things as who can give a child up for adoption, who may adopt a child, adoption agencies, and the ins and outs of the adoption process. The provincial Parental Responsibility Act requires that parents whose children have been convicted of causing damage to or loss of property may be responsible for their children's offences up to a maximum of $10,000.00. See the section "Children" for more information about the law on children generally, and the chapter "Other Family Law Issues > Adoption" for more information about adoption. Child Protection As of 1 October 2002, the Children's Commission, which investigated serious injuries or deaths suffered by children, and the Office of the Child, Youth and Family Advocate, which investigated issues involving children in the care of or involved with governmental and private agencies, have been replaced by the Office for Children and Youth. The Office for Children and Youth operates under the Office for Children and Youth Act and covers some of the same functions as the two former bodies. According to the Continuing Legal Education Society, the agency will:
The provincial Child, Family and Community Service Act gives the government the power to apprehend children believed to be suffering from child abuse or neglect, or who are at risk of child abuse or neglect. The Act regulates the conditions under which children can be seized, the conditions in which they may be placed in the care of the government, and the authority and powers of child protection workers.
See the chapter "Other Family Law Issues > Family Violence" for more information about child protection issues. Enforcement of Child and Spousal Support The provincial Family Maintenance Enforcement Act establishes the Family Maintenance Enforcement Program (FMEP), an government agency with the authority to enforce support orders, and sets the extent of that authority. The provincial Court Order Enforcement Act sets out the ways in which money awarded under a judgment can be collected, such as by liens against property, the garnishment of wages and so forth. The provincial Interjurisdictional Support Orders Act is the legislation that allows support orders made outside of British Columbia to be registered in this province for enforcement. It also lets someone affected by that order to start a process here that may result in the variation of that order in the court that originally made the order. The act does not apply to all support orders, only to countries, provinces and states that have an agreement with British Columbia to deal with each other's support orders in the same way.
See the chapter "Other Family Law Issues > Enforcing Orders & Agreements" for more information about enforcing child and spousal support. Real Property The provincial Land (Spouse Protection) Act protects the rights of spouses to their interest in the family home, but the protection ends once the parties divorce. The act does not apply to unmarried couples. The provincial Land Title Act deals with all aspects of real property in British Columbia, including the conditions of holding valid title to a piece of land, placing and removing encumbrances (like liens and mortgages) on the title of a property, and the conditions under which a Certificate of Pending Litigation can be placed on title. See the chapter "Family Assets > Protecting Assets" for more information about protecting property. Wills and Estates Marriage and divorce affect how property is distributed through a will and how property is distributed when someone dies without a will, or dies "intestate." Two pieces of provincial legislation are important here, the Wills Act and the Estate Administration Act. The Wills Act provides that: 15 A will is revoked by the marriage of the testator, unless (a) there is a declaration in the will that it is made in contemplation of the marriage, or(b) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if the person died intestate. 16 (1) In this section, "spouse" includes a person considered by a testator to be the testator's spouse. (2) If in a will a testator (a) gives an interest in property to his or her spouse,(b) appoints his or her spouse executor or trustee, or(c) confers a general or special power of appointment on his or her spouse, and after the making of the will and before the testator's death (d) a judicial separation has been ordered in respect of the marriage,(e) the marriage is terminated by a decree absolute of divorce, or a judgment granting a divorce under the Divorce Act (Canada) for which a certificate was or could have been issued under that Act, or(f) the marriage is found to be void or declared a nullity by a court then, unless a contrary intention appears in the will, the gift, appointment or power is revoked and the will takes effect as if the spouse had predeceased the testator. The Estate Administration Act deals with the distribution of the estate of someone who dies intestate, that is, without a will. This is a critical piece of legislation because a certain amount of the dead person's estate is automatically alloted to his or her spouse, regardless of whether they are together or have been separated for 10 years. Section 85 provides that: (2) This section applies if an intestate dies leaving a spouse and issue. (3) If the net value of the person's estate is not greater than $65 000, the estate goes to the spouse. (4) If the net value of the person's estate is greater than $65 000, the spouse is entitled to $65 000, and has a charge on the estate for that sum. (5) After payment of the sum of $65 000, the residue of the estate goes as follows: (a) if the intestate dies leaving a spouse and one child, 1/2 goes to the spouse;(b) if the intestate dies leaving a spouse and children, 1/3 goes to the spouse. (6) If a child has died leaving issue and the issue is alive at the date of the intestate's death, the spouse takes the same share of the estate as if the child had been living at the date. The provincial Wills Variation Act allows close relatives, including common-law spouses, who have been left out of someone's Will to apply to court for an order giving them some of the dead person's estate. See the chapter "Other Family Law Issues" for more information about Wills and estates law and family law. Change of Name The provincial Name Act is the piece of legislation that deals with changes of name, both for a spouse following divorce and for anyone who hankers to be called something different. The process fairly simple for a spouse following divorce. See the chapter "Other Family Law Issues" for more information naming children and the chapeter "Other Family Law Issues > Change of Name" for information about changes of name on marriage and divorce. Back to the top of the page. Site Navigation
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