Family Law Client Information Package

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1 Family Law Client Information Package The end of a relationship can be very difficult. In addition to the obvious emotional issues, couples are often faced with challenging financial and legal problems. When a marriage ends, the spouses need to deal with issues about their divorce, the care of their children, division of family assets, and payment of child and spousal support. Common-law spouses (people who have been living together for more than two years) have to deal with all of these issues except for divorce. When common-law spouses separate, their relationship is over and they don t need any orders to make the end of their relationship legal. Couples who have lived together for less than two years will only have to deal with issues about the care of their children, the payment of child support, and the division of assets. These couples are not legally entitled to claim spousal support from each other. When spouses can co-operate with each other, they may negotiate an agreement that resolves some or all of these issues. When they can t, then the courts may need to get involved. This client information package provides an overview of these issues. It briefly describes the most common family law problems and the basics of the family justice system. Key Issues in Family Law Many issues arise when a couple separates: If the couple is married, do they want a divorce? If the couple has children, what legal arrangements are needed to care for them? Your lawyer will use the terms custody, access, and guardianship when discussing this issue. How much money needs to be paid by one parent to the other parent to care for the children? Your lawyer will use the term child support to discuss this issue. How should the couple s property and debts be divided between them? Your lawyer will talk to you about property division and family assets. Should one person pay an amount of money to help support the other person? Your lawyer will use the term spousal support to discuss this issue.

2 Family Law Client Information Package 2 If a couple has lived together but never married, how do they deal with these issues on separation? Your lawyer will use the term common-law spouse to discuss this issue. There are two main statutes or pieces of legislation that deal with the legal aspects of divorce and the separation of families in British Columbia. They are the Divorce Act and the Family Relations Act. Your lawyer will refer to these statutes when discussing all of these issues with you. Divorce If you and your spouse are married, you may want to obtain a divorce. The Divorce Act governs divorces all across Canada. Under this Act, there are three grounds or reasons to get a divorce: you and your spouse have been living separate and apart for at least one year before you ask for an order for your divorce; your spouse has committed adultery; or your spouse has treated you with such physical or mental cruelty that you simply cannot continue to live together. If you and your spouse are not living together, you are separated. There is no legal concept of a legal separation, and there is no official document or court order you need to get to legally separated. To obtain a divorce in British Columbia, either you or your spouse must have lived in B.C. for at least one year before starting the divorce proceedings. Divorce proceedings are started by filing with the court a writ of summons and statement of claim. These documents tell the court that you are asking for a divorce order (and possibly other orders such as custody or support of children). A divorce proceeding may be filed only with the Supreme Court of British Columbia (not the Provincial Court of British Columbia). Custody, Access and Guardianship The best interests of the children are the guiding principles in custody, access, and guardianship decisions. Custody: There is no precise definition of custody. Generally, custody means having care and control of the child with the right to make decisions about the child s education, health, religion, and general well-being. Parents can have custody of children in two ways: Sole custody one parent has care and control of the children and is responsible for making decisions for the children. Joint custody the parents share responsibility for the children. The children may live with one parent (this is called the primary residence ) or they may divide their time and live with each parent. Guardianship: It is difficult to explain the difference between guardianship and custody. Guardianship is often referred to as the full bundle of parenting rights and responsibilities. Parents can have sole or joint guardianship of children.

3 Family Law Client Information Package 3 A guardian of a child can pass guardianship of the child in a will. If parents are joint guardians and one parent dies, the surviving parent remains the guardian of the child. If a parent who is sole guardian of a child dies, the surviving parent does not automatically become the child s guardian unless that parent is appointed guardian in the deceased parent s will. Parents often agree to a combination of custody and guardianship. For example, one parent may have sole custody of the children but the parents are joint guardians. In this case, the specific responsibilities of the joint guardians should be set out. Or, one parent may have sole custody and sole guardianship of the children. In this case, the other parent will only have access to the children. (Although in rare cases, the other parent may not even have access to the children.) The parents may also have joint custody and joint guardianship of the children. This situation means that the parents share all rights and responsibilities to the children equally. Access: When the parent who has the children the least amount of time spends time with them, it is called access or visitation. Generally, the law encourages as much contact as possible between children and their parents through access. In very limited circumstances, a parent may be denied access to children or may be required to have access to the children supervised by someone else. Child Support Both the Divorce Act and the Family Relations Act say that parents must financially support their children. Generally, parents must support children until they turn 19. Parents may have to support children older than 19 if they are dependent on the parents (such as in school or disabled). The parent who has the children in his or her care for less of the time will pay child support to the other parent. Stepparents as well as biological parents may have to pay child support. Child support is paid to help reduce the cost of raising children on the parent who has the children for more of the time. It is not a fee charged for access, nor is it a payment in exchange for access. Child Support Guidelines: The amount of child support that one parent must pay to the other is determined by the Child Support Guidelines. The Child Support Guidelines set out rules for calculating support and have tables setting out the amount of support payable based on the paying parent s income. There are other expenses that may be added to the amount of support set out in the table. There may also be times when the table amounts do not apply. Your lawyer will review these items with you. Spousal Support Spousal support (sometimes referred to as alimony or maintenance) is an amount of money paid by one spouse to support the other spouse after the separation. Unlike child support, the amount of spousal support is not determined by referring to guidelines or tables. The Divorce Act and Family Relations Act set out factors that must be considered when determining if one spouse should receive spousal support, in what amount, and for how long. Spousal support is not payable simply because the spouses were married or in a common-law relationship. In general, spousal support is paid to help with the day-to-day living expenses of a spouse where that spouse has a need for help and the other spouse has the ability to pay it. This is an area that very much depends on the circumstances of the spouses.

4 Family Law Client Information Package 4 Division of Property When a couple is married, their property is owned according to which spouse holds legal title to the property. For example, the house may be in joint names, the car in one spouse s name, and bank accounts may be in joint names. Once the spouses separate, they are each considered to have ownership in all of the property. When married spouses separate, they can seek to divide family assets under the Family Relations Act. Family asset is a term you will hear often. It is defined as an asset that has been ordinarily used during the marriage for a family purpose. This usually includes the spouses house, bank accounts, RRSPs, cars, and insurance policies. If one spouse claims that an asset was not used ordinarily for a family purpose, that spouse must prove it. The starting point under the Family Relations Act is that family assets be divided equally between the spouses. This usually means that each spouse keeps assets equal to 50 percent of the total value of the family assets. In some circumstances, the 50/50 division may not be fair and can be altered. Your lawyer will use the term reapportionment. The Family Relations Act sets out specific reasons why this can happen. For example, after a one-year marriage where both spouses worked, earned similar amounts of money, had no children, and one spouse owned the house prior to the marriage, the value of the house might be divided mostly in favour of that spouse instead of equally between the spouses. The division of debts is not mentioned in the Family Relations Act. Debts are considered either in the division of the assets (that is, the net value of an asset) or in the reapportionment of assets. Common-law spouses cannot rely on the Family Relations Act to divide their assets unless they entered into a property agreement (an agreement setting out how they will divide property on separation). Common-law spouses must rely on remedies called resulting trust and constructive trust. This is a complicated area of the law that your lawyer will explain to you in more detail. Common-law Spouses Under the Family Relations Act, a common-law spouse is a person who has lived with another person, including a person of the same gender, in a marriage-like relationship for at least two years. On separation, common-law spouses can seek child support, spousal support, or custody under the Family Relations Act. Overview of the Family Justice System The Divorce Act, Family Relations Act, and Child Support Guidelines are the main sources of law for families who are separating. It is up to the spouses to choose how decisions will be made on custody, access, child support, spousal support, and property division. There are two ways to make the decisions: by agreement of the spouses or by court order. Agreement Agreement can be reached through different processes: negotiation, mediation, and collaborative law.

5 Family Law Client Information Package 5 Negotiation occurs when spouses can talk to each other and decide who will have custody, how much support will be paid, and how assets will be divided. When the spouses have lawyers, the lawyers will try to negotiate these issues. Once these negotiations lead to agreement on the issues, the lawyers will prepare a written agreement for the parties to sign. A written agreement that describes how the issues between the spouses are settled is called a separation agreement. Mediation is a negotiation process where the spouses try to settle the issues with the help of a mediator, who is a neutral third party. The mediator is not the lawyer for either of the spouses. The role of the mediator is to help the spouses come to a solution of their family issues. Once an agreement is reached, the mediator will prepare a written agreement. Each of the spouses will take the agreement to a lawyer to obtain legal advice and sign the separation agreement. Collaborative law is a process in which the spouses agree to work toward a solution to the family issues without going to court. If the spouses decide to go to court, the collaborative lawyers must withdraw from the case because the lawyers cannot go to court. Once the spouses agree on the family issues, the collaborative lawyers prepare a written separation agreement. Court When spouses use the court system to resolve family issues, the process is called litigation. Litigation of family issues can take place in two courts in British Columbia: the Supreme Court of British Columbia and the Provincial Court of British Columbia. The choice of which court to use is really an issue of cost, strategy, and timing. Custody, access, guardianship, child support, and spousal support issues can be dealt with in either court. However, only the Supreme Court of British Columbia can order a divorce or divide property. Commencing litigation: In the Supreme Court of British Columbia a writ of summons and statement of claim are filed with the court to tell the court what orders you would like it to make. In Provincial Court, an application to obtain an order is filed with the court. Once these documents have been filed in the court registry, the spouse who filed the documents (called the plaintiff) must arrange to have a copy served on the other spouse. The other spouse (called the defendant) has a chance to respond. In Supreme Court, the defendant responds by filing a statement of defence ; in Provincial Court, the defendant files a reply. Before the trial: It can take several months to a year to schedule a trial date in court. Sometimes, the spouses need to deal with issues such as custody or support after the spouses separate but before the trial date. When the spouses ask the court for an order to temporarily deal with one or more issues before trial, this is called an interim application. An interim application is started by filing a notice of motion with the court. These interim applications are not heard by a judge in a trial. In Supreme Court, they are heard by a judge or master in chambers. The procedure is much less formal than in a trial. For example, evidence is presented to the court in written form, not by the testimony of witnesses. When someone provides evidence in written form under oath, the written document is called an affidavit. In Provincial Court, interim applications are heard by a judge. Unlike Supreme Court, the evidence is presented to the court by the testimony of witnesses, or, with permission of the judge, by affidavit. When the court gives an order on an interim application, it is an interim order.

6 Family Law Client Information Package 6 Judicial case conferences / Family case conferences: In Supreme Court, before an interim application can be brought, the parties and their lawyers must attend (with a few exceptions) a judicial case conference. The purpose of the conference is to identify and narrow the issues and encourage settlement. In Provincial Court (specifically, the Vancouver, Surrey, and Kelowna registries), the parties must meet with a family justice counsellor. Later there may be a family case conference, which is like a judicial case conference in the Supreme Court. Trials: If the spouses do not resolve their family issues, then a trial will be scheduled. A trial is a formal process in a courtroom with a judge. Evidence is generally given orally by witnesses who have sworn an oath to tell the truth. Once the trial is over, the judge will give reasons for judgment. The judge may give his or her reasons right away, called oral reasons for judgment, or the judge may want to give written reasons for judgment later. The lawyers prepare the final court order based on these reasons for judgment. Appeals: If one or both of the spouses disagree with the trial judge s decision, the spouse can appeal the decision only if the trial judge made an error in law (that is, if the judge applied the law incorrectly). A Provincial Court trial judge s decision can be appealed to the Supreme Court. A Supreme Court trial judge s decision can be appealed to the British Columbia Court of Appeal. The final court to hear appeals in Canada is the Supreme Court of Canada. Enforcement Once the spouses have signed a written agreement or obtained a court order, they may need to enforce the terms of the agreement or order at a later date. If a written agreement is filed with the Supreme Court or the Provincial Court, terms in the agreement on support, custody, or access can be enforced by the Supreme Court or Provincial Court. Once an order is made by a court, the court can enforce the terms of the order. Support orders from outside British Columbia can be registered in and enforced by a British Columbia court under the Interjurisdictional Support Orders Act. The Family Maintenance Enforcement Program helps people who are enrolled in the program to enforce child and spousal support orders. When payments under a support order have not been made, the term used for the total amount of the missed payments is called the arrears of support. Variation of Orders and Agreements After a court order is made or an agreement is entered into, there are some circumstances where the order or agreement can be changed. This process is called variation. A custody, access, spousal support, or child support order can be varied by the court if there has been a material (significant) change of circumstances. If a written agreement is filed with the Provincial Court, the court can vary terms about custody, access or support. The Supreme Court cannot vary agreements, but it can make an order with different terms than those contained in an agreement. A court can vary the property division terms of a written agreement if the terms are found by the court to be unfair based on specific factors set out in the Family Relations Act.

7 Family Law Client Information Package 7 Links to Family Law Resources These websites provide basic information on family law. The Ministry of Attorney General Family Justice website: This website has links to government family law-related resources in British Columbia. Legal Services Society Family Law website: new/new fl.asp This website has links to government and government-related family law resources in British Columbia. British Columbia Ministry of Human Resources, Fact Sheet and Brochure on the Family Maintenance Enforcement Program: Department of Justice Canada, Child Support: Supreme Court of British Columbia Provincial Court of British Columbia Canadian Bar Association BC Branch, Dial-A-Law lounge/dial-a-law.asp The People s Law School The Law Centre, University of Victoria Faculty of Law University of British Columbia Law Students Legal Advice Program Law Courts Education Society of B.C.

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