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This chapter is meant to be read as a whole, from start to finish. The main sections of this site, listed in the menu at left, go into each subject in a lot more depth and detail. When you're done with this page, the section The Legal System has a more advanced introduction to family law and the court process in BC. This chapter contains an introduction to family law and an overview of common family law problems, the courts that deal with family law problems and the laws about family law problems. It also talks about:
Introduction When a couple breaks up, they sometimes have to decide how property should be divided, how a child will be cared for, and whether someone needs some extra money to pay the bills. Family law, also called divorce law, is the area of the law that deals with problems like these. To understand how family law works in British Columbia, you need to have a basic understanding of the court system, the laws about family law problems, and the way the courts apply those laws when a couple can't agree about something. Since it isn't always necessary to go to court when there's a problem, you also need to know about family law agreements and mediation, which are the most common ways that people solve their problems without the help of a judge. Family law problems are fixed in one of two ways: the couple negotiates with each other and comes up with a solution that they both agree to; or, the couple can't agree and they have to go to court to have a judge come up with a solution. Going to court means that one or both people have to start a law suit. Law suits are also known as "claims" or "actions." Going to court is called litigation; trying to come up with an agreement without going to court is called negotiation. There are two courts that handle almost all family law litigation in British Columbia: the Provincial (Family) Court and the Supreme Court. Each court has their own rules, their own forms and their own procedures. There are two main laws that apply to family law problems. 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 Relations 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 Relations 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:
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, a solution that you both agree to. 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 legal training. Because there are no rules about who can and who can't call themselves a mediator, you should look carefully at the mediator's credentials before agreeing to use that person as your mediator. Further Reading The Legal System talks about the courts, the laws, and how to start a law suit. Back to the top of this chapter. Common Family Law Problems Couples who aren't married, couples who live together, and couples who are married can all have family law problems when their relationships end. 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 what property. Family law problems about children are:
Support means money one person pays to another person to help with that person's expenses:
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 a married couple shares is called family assets. Family assets 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 debts that came from spending on the family will be shared between a couple. Married couples 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 couples whose relationship has ended usually want to get divorced, but it really isn't necessary unless you want to marry someone else later on. Couples who aren't married never need to get divorced. All of these family law problems will be discussed in more detail later on. 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:
This chart summarizes the legal differences between these relationships:
Further Reading Children talks about custody, guardianship and access Back to the top of this chapter. The Courts 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. Most family law litigation happens in the Provincial Court and the Supreme Court. 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. Family court can deal with:
The Supreme Court can deal with all family law problems. On top of issues about the care and control of children, child support and spousal support, this court can also deal with:
This chart shows which court can deal with different family law problems:
To get to court, you must start a law suit and tell the court what you want. In the Provincial Court, litigation is started with a court form called an Application to Obtain an Order. In the Supreme Court, two court forms are required: a Writ of Summons and a Statement of Claim. In the Provincial Court, the person who starts a law suit is called the Applicant; in the Supreme Court, this person is the Plaintiff. Once a law suit has started, the other person can file a reply, answering the claims being made and perhaps making new claims of his or her own. In the Provincial Court, a reply is actually called a Reply. In the Supreme Court, two court forms can be filed: a Statement of Defence and a Counterclaim. In the Provincial Court, the person to replies to a law suit is called the Respondent; in the Supreme Court, this person is the Defendant. (There are examples of all of these different types of forms in the The Legal System section of this website.) After the Respondent or Defendant has filed a reply, both people can ask the court to make an order about some or all of the issues raised in the law suit. 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 person, an order that someone not harass someone else, or an order that one person 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 make an 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 the judge that concludes the law suit. If you don't like the order you get from a judge, you can challenge the order by appealing the order to a higher level of court. 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 better suit the new circumstances. This is called varying an order. Further Reading The Legal System has an introduction to the court system Back to the top of this chapter. The Laws 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 law suits that the courts have heard over hundreds of years, and the decisions the courts made in those different law suits. 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 Relations Act. Each piece of legislation deals with different family law problems and applies to different kinds of relationships. The Divorce Act only applies to people who are married or who used to be married to each other. It deals with:
The Family Relations Act applies to people who are married, people who are in a common-law relationship, and couples who are neither married nor in a common-law relationship. This piece of legislation deals with:
Common-law couples can only use the Family Relations Act for orders about the care of children, child support and spousal support. Couples who aren't married and aren't in a common-law relationship can only use the act for orders about the care of children and child support. The Supreme Court can make orders under both the Divorce Act and the Family Relations Act. The Provincial Court can only make orders under the parts of the Family Relations Act that don't deal with property. This chart shows which law deals with which issue:
There are a bunch of other pieces of legislation that have to do 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. 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 than what the tables say should be paid. Further Reading The Legal System has an introduction to the legal system Back to the top of this chapter. The Care and Control of Children 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. Custody sort of means where the children will live most of the time. Parents can share custody, called joint custody, or only one parent can have custody, called sole custody. Whether the parents have joint custody or sole custody has very little to do with how much time they each have with the children. Because of this, "custody" doesn't mean very much when both parents are in their children's lives. Guardianship is all about parenting. It is about 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 children's religion. Both parents can have joint guardianship or one parent can have sole guardianship. A parent with sole guardianship does not need to ask the other parent about these important decisions. When the parents have joint guardianship they must talk to each other and work together to make decisions about the children. In many ways, guardianship is a lot more important than custody, since guardianship is all about raising the children. Guardianship is about parenting. Access is the amount of time that each parent has with the children. Usually, access refers to the time that the parent with the least amount of time with the children has with the children. Any sort of access is possible. The children's time can be shared equally between the parents; a parent can have the children every other weekend; a parent can have the children for three days every week. Whatever arrangement you can think of, you can have. Access is also called parenting time or a parent's time with the children. When the court must decided about custody, guardianship or access, the most important thing for the court is making a decision that is in the best interests of the children. The court isn't interested in what the parents want for themselves; the court is interested in how what a parent wants is or isn't in the best interests of the children. Further Reading Children > Custody talks about custody Back to the top of this chapter. Child Support 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, guardianship or access, or whether a parent is a good parent or a bad parent. Child support is almost always paid every 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. Normally a parent pays the exact amount of child support the Guidelines tables say should be paid. A parent can pay a smaller amount where the children's time is shared almost equally between the parents or when 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 extraordinary expenses, are not covered in this basic amount. Typically, extraordinary expenses are expenses like daycare and orthodontics — big but common expenses that almost all children have. Where the children have extraordinary expenses, the parents contribute to those expense 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%. Further Reading Child Support has an introduction to child support Back to the top of this chapter. Spousal Support Spousal support is not paid just because a couple were married or because they were in a common-law relationship. Spousal support is only paid where a person is in financial need because of:
A relationship can cause someone to be in financial need if the couple decided that one of them should quit work and stay at home to, for example, raise the children and be a homemaker. Someone 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. The end of a relationship can also cause someone to be in need. After a couple separate, the same amount of income 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, their income only had to pay for one rent bill, one hydro bill and one phone bill. Spousal support is usually paid every month. The amount of spousal support that should be paid is usually an amount that the person with more money can afford to pay, with 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 for ever. 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 a duty 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 draft proposed Spousal Support Advisory Guidelines. The Advisory Guidelines use two formulae, one for when a couple has children and one for when they don't, that calculates how much support should be paid according to the length of the relationship and each parties' annual income. There are three very important things to know about the Advisory Guidelines:
Only people who are married or were in a common-law relationship can ask for spousal support. Common-law couples must ask for spousal support within one year of the date they separated; married couples can ask for support at any time after they have separated. Further Reading Spousal Support has an introduction to spousal support Back to the top of this chapter. Dividing Family Property Married people are presumed to have a one-half interest in everything that is a family asset, regardless of who bought it or when it was bought. A family asset is any asset that was normally used by the family, such as the family home, the car, the couple's bank accounts and so forth. Family assets also include things like RRSPs and pensions. Not all assets are family assets. Business assets, assets owned by a spouse's company, are not always family assets that can be shared. Other assets, like inheritances and court awards, are usually personal assets that are not divided. A married person can sometimes be entitled to more than half of the family assets if the marriage was really long and the person needs more help to be financially independent than spousal support will give. A married person can also be entitled to more than half of the family assets if the person brought most of those assets into the marriage and the marriage was short. For married people, family assets are divided under the rules set out in the Family Relations Act. People who aren't married cannot use this law to divide their property. The rules in the act only apply to married couples. They do not apply to common-law couples or to couples who are neither married nor common-law. Unmarried couples, including common-law couples, who own something together are presumed to have equal interests in that thing. Unmarried couples can only get a share of property owned only by the other person under the rules of trust law. Trust law is very complicated, and unmarried couples almost never get the same share of the other person's property that they would have gotten if they were married. Further Reading Family Assets has an introduction to dividing family assets Back to the top of this chapter. Separation and Divorce You do not need any legal document in order to separate, and you don't need to see a lawyer to separate. You just leave the relationship or announce that it's over. There is no such thing as a "legal separation" in British Columbia. For unmarried and common-law couples, their relationship is over the moment they separate. That's it, it's done! There is no such thing as a "common-law marriage," and common-law couples do not need to get a divorce. For a marriage to end, a married couple must divorce, and that means they must get a court order saying that they are are divorced. A married couple can be separated for many years and 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 married person can't do that an unmarried person can do is marry again. Married people that have separated from their spouse can date someone else, live with someone else, be in a common-law 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:
To get a divorce order, you have to start a law suit. 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 desk order divorce process, and they won't have to go in front of a judge ever. The whole thing is done on paper. Further Reading Marriage & Divorce > Separation talks about separation for married people Back to the top of this chapter. Family Law Agreements A family law agreement is a contract, like the contract you might have with your landlord, your employer, or the contract you might have if you lease a car. There are three kinds of agreement a couple can make in family law:
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 do not have to sign an agreement if you don't want to. Cohabitation agreements and marriage agreements aren't 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 usually don't need an agreement. Separation agreements are made after a relationship has ended. They set out how a couple have 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 has. 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 problems and negotiate an agreement that they are both happy with. It is very rare 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 the agreement. 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. Further Reading Family Agreements talks about family law agreements Back to the top of this chapter. Information for People who are New to Canada In Canada, men and women have exactly the same rights. There is no difference between the rights a man has and the rights that a women has, whether they are married to each other or not. Men do not have the right to control women or tell them what they may and may not do, even if a couple are married. Our courts are open to everybody who lives in Canada, not just citizens. People who are new to Canada can make a claim in court, regardless of their citizenship status, and regardless of whether they are a landed immigrant or not. There is no law that requires someone who is unhappy in a marriage to stay in a marriage. If someone wants to leave a relationship, he or she can, and that person does not need the permission or agreement of the other spouse to leave. In Canada, there is no requirement for either dowry or dower to be paid when a couple marries. Even if a religion requires such a payment, the religious duty is not legally binding. While arranged marriages are fairly common, the parties must agree to the marriage of their own free will. There is no law that allows someone to be forced to marry someone else. An agreement between relatives about the marriage is not legally binding on the people who are supposed to be married. When one spouse sponsors another spouse to come to Canada, that person will usually sign a "sponsorship agreement" with the government. That agreement requires the sponsor to support the person coming to Canada, whether they stay married or separate or divorce. This agreement is only binding between the sponsor and the government. If the person coming to Canada needs spousal support, for example, he or she will have ask the court for an order that spousal support be paid. Separation does not automatically mean that someone new to Canada will have to leave the country. People who are permanent residents, for example, will be allowed to stay, regardless of what is happening in their relationship with their sponsors. You should, however, speak to an immigration lawyer just to be sure. Back to the top of this chapter. Site Navigation Go on to The Legal System. Secton Menu
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Welcome to Family Law 101. This chapter offers a quick introduction to the court system and the laws and principles of family law in British Columbia. It is written in very plain language and is meant for people who have never had to deal with the court system before and for people who are new to Canada.