Family Law 1720 Grant St. Vancouver BC V5L 2Y MOSAIC 2008
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1 Family Law 1720 Grant St. Vancouver BC V5L 2Y MOSAIC 2008
2 This project has been made possible through the financial support of Legal Services Society of British Columbia and The Law Foundation of British Columbia. Original publication: May 2004 Author: Judith Boer, LLB Project co-ordinator: Judith Boer, LLB Legal support provided by: Alexander Holburn Beaudin & Lang Revised: November 2008 Updated By: Sonya Sabet-Rasekh, Pro Bono Law Students Program and Miriam Jurigová, LLB (Immigration section only) Project Co-ordinator: Miriam Jurigová, LLB, Legal Advocacy Program Immigration Legal Support and Review: Shane Molyneaux, LLB Immigration and Citizenship Lawyer: Elgin Cannon and Associates Family Law Legal Support and Review Provided By: Zahra F. Ahmed, LLB, Maxwell Bulmer Hopman, Barristers & Solicitors This publication may not be reproduced commercially, but copying for other purposes, with credit, is encouraged. Feel free to photocopy pages for anyone who needs information. MOSAIC: Public Legal Education Project for Newcomers Revised November 2008 i
3 Contents GENERAL OVERVIEW... 7 Marriage... 8 Children... 9 Divorce... 9 Divorce Act... 9 Family Relations Act... 9 THE COURTS Comparison: Provincial Court and Supreme Court responsibilities Comparison of Provincial Court and Supreme Court Family Justice Centres Family Duty Counsel More Information COMMON-LAW RELATIONSHIPS Cohabitation Agreement Ending a Common-Law Relationship More Information IMMIGRATION ISSUES Permanent Residents Non-Permanent Residents SPOUSE In-Canada CLASS Sponsorship Sponsorship Agreement Refugee Claimants Child Support Children and Removal from Canada Humanitarian & Compassionate Application (H&C) Spousal Support More Information LEGAL AID Legal Advice Legal Representation VIOLENCE AND ABUSE Victim Service Workers Safety Plans Women s Shelters Peace Bonds, Restraining Orders and No-Contact Orders Peace Bond MOSAIC: Public Legal Education Project for Newcomers Revised November 2008 ii
4 Restraining Order No-Contact Order Refugees and Immigrants More Information CHILD PROTECTION Child Abuse Physical Abuse Sexual Abuse Emotional Abuse Child Neglect Duty to Report Child Abuse Plan of Care Child Apprehension More Information SEPARATION What to Take When Leaving Decisions to be Made Separation Agreement Consent Order Interim Order Court Order Children Enforcing the Agreement More Information DIVORCE Temporary Reconciliation Types of Divorce Proceedings Foreign Marriage More Information Income Security and Financial Matters Benefits Old Age Security (OAS) Guaranteed Income Supplement (GIS) Welfare Bank Accounts and Credit Cards Insurance Policies and RRSPs Medical & Dental Coverage Wills Decision Making Power More Information MOSAIC: Public Legal Education Project for Newcomers Revised November 2008 iii
5 CUSTODY, ACCESS AND GUARDIANSHIP Custody Sole Custody Joint Custody Interim Custody Access Limits on Access Guardianship Mutual Agreements Going to Court Leaving B.C. or Canada Parenting after Separation More Information PROPERTY AFTER SEPARATION Married Couples Family Assets The Family Home Business Assets Common-law Couples Pensions Work Pensions Canada Pension Plan (CPP) Debts Married Couples Common-law couples More Information CHILD SUPPORT Entitlement Legal Parents (Stepparents) Child Support Guidelines Extraordinary Expenses Child Support and Welfare Income Tax Rules More Information SPOUSAL SUPPORT Income Tax Rules More Information CHANGING ORDERS OR AGREEMENTS Changing an Agreement MOSAIC: Public Legal Education Project for Newcomers Revised November 2008 iv
6 Changing a Court Order Property Division More Information ENFORCING ORDERS Family Maintenance Enforcement Program Enforcement Outside of BC More Information MEDIATION Length of Mediation Finding a Mediator Collaborative Family Law More Information GOVERNMENT AND LEGAL RESOURCES - FAMILY Battered Women s Support Services (BWSS) Legal Advocacy Program Child Support Info Line Family Advice Lawyer Project Provincial Court Family Duty Counsel Family Justice Centres & Counsellors Family Maintenance Enforcement Program Multilingolegal Website COMMUNITY AGENCIES APPENDIX I Family Justice Centres APPENDIX II Family Duty Counsel Offices Acknowledgement of Duty Counsel Services Form Family Duty Counsel Client Information Form APPENDIX III Women s Shelters BC/Yukon Society of Transitions Houses APPENDIX IV Treatment for Abusive Men APPENDIX V Getting a Divorce Do-it-Yourself Divorce MOSAIC: Public Legal Education Project for Newcomers Revised November 2008 v
7 Self-help Kits APPENDIX VI Provincial Court vs Supreme Court Sources MOSAIC: Public Legal Education Project for Newcomers Revised November 2008 vi
8 GENERAL OVERVIEW MOSAIC: Public Legal Education Project for Newcomers Revised November
9 This module is for general information only. This information is not legal advice. Please contact a local community agency or lawyer if help is needed with a legal situation. This module gives a general overview of family law. Referrals and resources will be provided throughout for detailed information on various aspects of family law. In this module, the term spouse refers to married couples and the term common-law spouse refers to common-law couples, who have lived together in a marriage-like relationship for a period of at least two years. 1 If a situation or law applies to both married and common-law couples then the individuals will be referred to as partners. Marriage The legal requirements of a valid, legal marriage are governed by the common law, the federal Marriage (Prohibited Degrees) Act, the federal Civil Marriage Act and the provincial Marriage Act. In British Columbia the legal requirements of marriage are governed by the Marriage Act. In British Columbia, any person over the age of 19 can marry. A person younger than 19, must obtain the consent of both parents to marry. A person under the age of 16 must obtain an Order from the Supreme Court. The two individuals aged 16 or older must not be closely related or married to other people and must have the mental capacity to understand the nature of the ceremony and the rights and responsibilities marriage involves, at the time of the ceremony. A couple must have a legal marriage ceremony either of a religious or civil nature performed by a licensed individual. Foreign marriages are recognized in British Columbia. Two common law rules govern the validity of marriage performed outside the province: 1. the formalities of the marriage are those of the law in the place where the marriage occurred; and, 2. the legal capacity of each party to marry is governed by the law of each party's domicile. A marriage legally ends when one spouse dies or the couple divorces. Although same-sex marriages are permitted by law, religious organizations with beliefs against same-sex relationships can refuse to perform a same-sex ceremony, and can similarly refuse to recognize such marriage. However, this has no bearing on the legal rights and responsibilities of the married couple. 1 Part I, S. 1, Family Relations Act [RSBC 1996] CHAPTER 128. MOSAIC: Public Legal Education Project for Newcomers Revised November
10 Children A child is the offspring of his/her biological parents. Legally, there is no difference between the status of a child born to individuals who are legally married, a single mother or persons in a common-law or same-sex relationship. In the eyes of the law, a child born outside marriage is treated the same as a child born to legally married parents. Children have certain rights and, depending on their age, their views may be a factor considered by the court on certain issues as: Custody preferences Getting or refusing medical or psychiatric treatment Child protection situations Foster care Access to money held in trust The People s Law School publication The Child s Right to Love has more information about children s rights. It is available at snapfiles/the-child-s-right-to-love.pdf Divorce Divorce Act Divorce is regulated by the federal Divorce Act, which only applies to legally married couples (opposite- and same-sex). It does not apply to common-law couples. Family Relations Act The B.C. Family Relations Act (FRA) is a provincial statute dealing with child custody and access, spousal and child support and the division of property of married spouses (matrimonial property). The FRA s definition of spouse includes both legally married persons and persons living in a marriage-like relationship (common-law relationships), whether opposite- or same-sex. However, to become common-law within the meaning of the FRA, a couple must have lived together for at least two years. For common law couples, the FRA governs issues all issues except the division of property. IMPORTANT NOTE: There is no statute that deals with division of property of common-law spouses. Parts 5 and 6 of the FRA, which deal with the division of property and pensions, do not apply to common-law couples. MOSAIC: Public Legal Education Project for Newcomers Revised November
11 THE COURTS MOSAIC: Public Legal Education Project for Newcomers Revised November
12 Family matters can be dealt with in Provincial Court and Supreme Court. There are certain limits on what matters can be dealt with in Provincial Court, which can t grant a divorce or deal with the division of property. Comparison: Provincial Court and Supreme Court responsibilities 2 Both the Provincial Court and the Supreme Court grant court orders for: Custody and access Spousal and child support Enforcement of support, custody and access orders Guardianship of children Paternity (if paternity is an issue for child support) Protection Only the Provincial Court grants court orders for: Child protection (giving the Ministry of Children and Family Development the right to remove a child from his/her home and place the child with another relative or foster family) Adult guardianship (providing protection for adults who are vulnerable to abuse or no longer capable of making their own decisions) Only the Supreme Court grants divorces and orders for: Division of property Exclusive occupancy of the family home Exclusive use of the contents of the family home Guardianship of the estate (property) of a child Paternity (for issues not related to child support) Adoption Comparison of Provincial Court and Supreme Court Provincial Court What it Does Advantages Disadvantages Court orders for Forms are easy to fill Cannot settle property guardianship, out and there are no issues or grant divorces restraining orders, filing fees Cannot change orders exclusive occupancy of There is no charge to made in Supreme Court a family home, child see a family justice Available only to B.C. protection, custody and counsellor residents access, child and Faster spousal support Available for opposite- 2 MOSAIC: Public Legal Education Project for Newcomers Revised November
13 Supreme Court Provincial Court What it Does Advantages Disadvantages sex and same-sex married and commonlaw couples, as well as other persons with respect to children May be closer to couple s community You don t have to hire a lawyer Grants divorces Settles property matters Rules on custody, access, child and spousal support Available to B.C. residents and nonresidents In B.C. under the FRA, the Provincial Court can make orders on child guardianship, custody and access, restraining orders, spousal and child support, and exclusive occupancy of the family home. Both legally married and common-law spouses can apply to Provincial Court. Note: Provincial Court does NOT grant divorces or deal with division of property under the FRA or for common-law couples. Deals with all issues in one proceeding Orders cannot be changed easily (litigants may be in court less often) You can get an order against a non-b.c. resident More complicated procedures and paperwork A counsel may be needed in complicated cases Have to go back to B.C. Supreme Court to amend, vary or rescind an order Note: At the BC Supreme Court-level, it is advisable you are represented by a lawyer. Family Justice Centres Family Justice Centres are a free service available through the Provincial Court. They are meant to help people going through court proceedings and are staffed by family justice counsellors specially trained to: MOSAIC: Public Legal Education Project for Newcomers Revised November
14 Explain the processes and procedures of Provincial Court Help fill out Provincial Court forms Provide mediation services Refer people to other sources of help Help people prepare separation agreements Family justice counsellors are not lawyers, do not provide legal advice and do not represent people in court. They CANNOT help people with a divorce or other Supreme Court matters. More information on family justice counsellors is available at family-justice/help/counsellors/index.htm. Appendix I, page 83, lists of B.C. Family Justice Centres. Family Duty Counsel Family duty counsel (lawyers) are available at Provincial and Supreme courthouses for free summary advice on family law matters, but they are not able to take on whole cases or represent individuals at trial. They are available to provide procedural guidance and assistance and summary advice. More information on duty counsel can be found at help/who_familydutycounsel.asp. Appendix II, page 88, lists Family Duty Counsel offices. BC Supreme Court Self Help Centre The BC Supreme Court Self-Help Information Centre in Vancouver provides information to unrepresented litigants to help prepare family or civil matter. At the Centre You can learn about the court system and court procedures, get legal information, locate and fill out the relevant court forms, find out about free legal advice, and find alternatives to court. More information on the Supreme Court Self Help Centre is available at MOSAIC: Public Legal Education Project for Newcomers Revised November
15 More Information BC Ministry of Attorney General Family Justice Dial-A-Law Program (a free library of legal information) Lower Mainland: In B.C.: Legal Services Society Family Law in British Columbia Legal Services Society: Living Together, Living Apart MOSAIC: Public Legal Education Project for Newcomers Revised November
16 COMMON-LAW RELATIONSHIPS MOSAIC: Public Legal Education Project for Newcomers Revised November
17 When two people live together as a couple but are not married, they are in a common-law relationship or in a marriage-like relationship with similar expectations, obligations and responsibilities. The couple can be opposite- or same-sex. A person can be in a common-law relationship even if he/she is still legally married to another person. Most provincial and federal laws give common-law couples the same rights and responsibilities as married couples, except with respect to the division of property and pensions at the end of a relationship. Under federal law, you re considered a common-law spouse after you ve lived with your partner for one year or longer. Federal law covers areas like income tax and the Canadian Pension Plan (CPP). Under federal law, people in common-law relationships are referred to as partners. Under B.C. provincial law, you re considered a common-law spouse after you ve lived with your partner for two years or longer. Provincial law covers areas like family law and B.C. s medical services plan (MSP). Under provincial law, people in common-law relationships are referred to as spouses. Cohabitation Agreement The laws of property division as regulated by the FRA DO NOT apply to commonlaw couples. A cohabitation agreement is an agreement common-law couples can sign to determine how property will be divided if the relationship ends. Note: If you enter into a cohabitation agreement then Part 5 of the FRA dealing with division of matrimonial property may apply. To protect your rights, you should obtain legal advice from a free legal clinic or lawyer before signing any agreement. Ending a Common-Law Relationship When a common-law couple stops living together, the common-law relationship ends. The couple does not have to take any legal steps to end the common-law relationship. More Information Legal Services Society: Living Together, Living Apart resources/publications/pub.aspx?p_id=72 MOSAIC: Public Legal Education Project for Newcomers Revised November
18 Dial-A-Law Program Tape 147: Common-Law Relationships: The Children in Your Family Tape 148: Common Law Relationships: Your Income, Support and Property Rights Tape 150: Common-Law Relationships: What Happens When Your Partner Dies? MOSAIC: Public Legal Education Project for Newcomers Revised November
19 IMMIGRATION ISSUES MOSAIC: Public Legal Education Project for Newcomers Revised November
20 CIC won t deport sponsored family members when a marriage ends if a person is a permanent resident or citizen. Sponsors can t make sponsored family members leave Canada. If you feel threatened, consult with a qualified legal professional immediately. (No one can have his/her status taken away without an admissibility hearing.) Permanent Residents The immigration status of permanent residents will NOT be affected if they divorce or separate. Non-Permanent Residents The situation for people who do not have permanent resident status (e.g., sponsored persons waiting for permanent resident status or refugee claimants) is less certain. If they separate from their partner, they should get legal help regarding their immigration status as soon as possible. Refugee claimants may need to separate their refugee claim from their partner s claim (see page 20). SPOUSE In-Canada CLASS Sponsorship As a hypothetical case, a woman may be in Canada as a visitor, temporary worker or student, and marry a Canadian citizen or permanent resident. In order to stay together, the couple can apply for SPOUSE In-Canada Sponsorship, so she can stay in Canada while the sponsorship application is being processed. An In-Canada Sponsorship is processed in two stages: 1. CIC MAKES A DECISION ON THE GENUINENESS OF THE RELATIONSHIP. IF FOUND TO BE GENUINE, CIC WILL ISSUE AN APPROVAL IN PRINCIPLE LETTER. 2. CIC assesses the person s CRIMINAL, SECURITY AND MEDICAL ADMISSIBILITY for permanent resident status. If our hypothetical couple separates during the first stage, the woman s eligibility to apply as a SPOUSE in-canada applicant is in jeopardy. She is still in the first stage if CIC has not sent her a letter stating that the APPLICATION HAS BEEN APPROVED IN PRINCIPLE. She should get legal assistance as soon as possible and inform CIC about the situation. She MAY BE ABLE TO apply to stay in Canada on humanitarian and compassionate grounds. If the couple separates after the approval in principle has been issued, the woman s eligibility to stay in Canada will still be affected. The sponsor can withdraw the sponsorship and the application will be denied. Even if the sponsorship is not withdrawn but the couple has separated and is living apart, the application will be denied, since a condition of the spouse in Canada class is that MOSAIC: Public Legal Education Project for Newcomers Revised November
21 the couple must reside together. One must never advise a client to misrepresent him/herself. If a couple is living apart at the time of landing, this information must be disclosed to CIC. Sponsorship Agreement Sponsors continue to be financially responsible for their sponsored partner FOR A PERIOD OF THREE YEARS FROM THE DATE THEIR PARTNER BECOMES A PERMANENT RESIDENT. (Prior to 2002, the sponsorship duration was 10 years.) A sponsorship agreement is NOT broken by separation or divorce. If the sponsor can t or won t financially support his/her ex-spouse, the sponsored exspouse can receive welfare if he/she is a permanent resident, citizen or refugee claimant. PERSONS WITHOUT PROPER IMMIGRATION STATUS, INCLUDING IMPLIED STATUS, SHOULD NOT REQUEST WELFARE. See the Immigration and Refugee Law module for more information. If the sponsored applicant qualifies for welfare and is still in the sponsorship undertaking period, the sponsor can t sponsor someone else (or else he/she will be in sponsorship default and be made to REPAY WELFARE FOR THE MONIES HIS/HER SPONSORED PARTNER RECEIVED). See the Immigration and Refugee Law module for more information. Refugee Claimants A woman who has been found to be a Convention Refugee is not at risk of removal when she separates from her abusive partner, even if she hasn t yet received her permanent resident status. She can receive welfare without affecting her application. A woman whose refugee claim is still in progress who separates from her partner, however, should get legal assistance. If her claim is based on her partner s fear of persecution she may separate her claim from his (sever the claim) and continue the process independently if she has her own claim. It is very important to seek qualified legal advice. A woman s fear of persecution may develop during her time in Canada. It is possible that the breakdown of a marriage creates fear of persecution in a woman s country of origin by her family, community or society. Child Support A sponsor does not have the right to keep any children, but must continue to help support them. For more on child support, see page 50. MOSAIC: Public Legal Education Project for Newcomers Revised November
22 Children and Removal from Canada Having a Canadian-born child does not automatically give a woman without permanent resident status the right to stay in Canada. However, CIC must consider what is in the best interest of the child by considering the child s ties to Canada and deciding if removal from Canada, with or without the child s mother, would BE IN THE CHILD S BEST INTEREST OR AMOUNT TO HARDSHIP. HARDSHIP may include financial hardship and separation from a parent. See the Immigration and Refugee Law chapter for more. Humanitarian & Compassionate Application (H&C) H&C applications are for those who would suffer excessive hardship if they are forced to return to their home country and apply for permanent residency from there. See the Immigration and Refugee Law chapter for more. A woman may be able to submit an H&C application if she leaves her partner due to abuse before she receives her permanent resident status. However, she is guaranteed to be able to stay in Canada there are many factors CIC considers to award a successful H&C. See Guide to Humanitarian and Compassionate Applications at To show CIC she suffered from abuse and therefore left the relationship, a woman should collect such proof as: 3. Police incident reports 4. Court information (e.g., charges or convictions) 5. Reports from transition houses/shelters, community organizations and/or womenserving agencies 6. Medical reports from doctors, hospitals and/or clinics The woman should also keep a personal record of the abuse, including: When the abuse began Specific instances of abuse (dates, details and witnesses) Worsening abuse Her level of fear and risk A forced return to a country of origin may expose a woman to hardship due to: Customs and culture Lack of support Pregnancy Hardship on her children MOSAIC: Public Legal Education Project for Newcomers Revised November
23 Length of time in Canada Sponsor s return to the country of origin Political unrest or war Spousal Support A sponsor may have to give his/her ex-partner support payments, called spousal support. See page 22 for more. More Information BC Institute Against Family Violence Assisting immigrant and refugee women abused by their sponsors Legal Services Society Sponsorship Breakdown (in Chinese, Korean, Punjabi, Spanish and Vietnamese) Legal Information Fact Sheets For Battered Women If You Are an Immigrant Sponsored by Your Husband (in Chinese, Farsi, Punjabi and Spanish) MOSAIC: Public Legal Education Project for Newcomers Revised November
24 LEGAL AID MOSAIC: Public Legal Education Project for Newcomers Revised November
25 The Legal Services Society (LSS) provides legal advice in family law to financially eligible people in certain situations. For information about legal aid coverage in immigration law see the chapter on Immigration and Refugee Law. Legal Advice To be eligible for legal advice, your household income must not be higher than the limit as set out in the table below: Household size* (number of family members) 1-4 $3,085 5 $3,625 6 $4, $4,750 Net monthly income** (income after taxes) *Family members include children and parents or other adults responsible for and living with the children. **Income is your net income from all sources, excluding that of a new spouse or common-law partner of two years or less, and child support payments. A parent with a low income experiencing separation or divorce may be eligible for up to three hours of free legal advice from a family advice lawyer, even if he/she does not qualify for a legal aid lawyer. Family advice lawyers provide advice about custody, access, guardianship, child support, property (limited advice), tentative settlement agreements and court procedures. This service is available in family justice counsellors' offices in Kamloops, Kelowna, Prince George, Surrey, Vancouver and Victoria. You must be referred to a family advice lawyer by a family justice counsellor or a child support officer. For more information about this service, call Enquiry BC and ask to be connected to a family justice counsellor's office. Enquiry BC Vancouver: Victoria: B.C.: MOSAIC: Public Legal Education Project for Newcomers Revised November
26 Legal Representation You re eligible for legal representation by a legal aid lawyer if your net monthly household income is below the amount for your household size: Household size* (number of family members) 1-4 $3,085 5 $3,625 6 $4, $4,750 Net monthly income** (income after taxes) *Family members include children and parents or other adults responsible for and living with the children. **Income is your net income from all sources, excluding that of a new spouse or common-law partner of two years or less, and child support payments. For more information on legal representation in Provincial Court, visit For more information on legal representation in B.C. Supreme Court, visit If your income is higher than the limits in the table above, you can still receive the following assistance: LawLINE information services: up to 45 minutes of general help from family duty counsel (depending on availability) A 45-minute appointment with a family advice lawyer (with a referral from a family justice counsellor) Publications on a variety of legal topics Family law information on the Family Law in BC website For more information visit You may be able to get legal aid if: 7. You re a victim of domestic violence and likely need a restraining order 8. You have a child who is at risk and a supervised access order or restraining order is needed for protection 9. You need to change a custody or access order to ensure you and your children are safe MOSAIC: Public Legal Education Project for Newcomers Revised November
27 10. You need a non-removal order to prevent the other parent from permanently moving the child out of the province; the threat must be real and imminent and involve a permanent change of residence Legal aid may also be available if you have a legal problem with the Ministry for Children and Family Development (e.g., the ministry has taken your child away). LSS provides the following legal aid services in the area of family law: 11. Family duty counsel lawyers helping clients prepare for family and judicial case conferences and attending those sessions with clients (Kamloops, Kelowna, Port Coquitlam, Prince George, Prince Rupert, Surrey, Terrace, Vancouver and Victoria) 12. Providing broader dispute resolution assistance to clients with significant custody, access and financial security issues or who face barriers to resolving cases on their own 13. Representing family clients in court when all other efforts to resolve their cases have failed and resolving the case will make a significant difference to the client or his/her children Legal Services Society Lower Mainland: Elsewhere in B.C.: MOSAIC: Public Legal Education Project for Newcomers Revised November
28 VIOLENCE AND ABUSE MOSAIC: Public Legal Education Project for Newcomers Revised November
29 Men and women of all age groups, from all economic and social classes, racial and cultural groups may become victims of abuse. Abuse can be emotional, psychological, financial or physical. It can take the form of neglect, destruction of property, injury to pets, threats to family or to take children away, physical and sexual assault. It s illegal to beat, threaten or harass another person. Stopping abuse is a matter of public interest and you can t press or drop charges once the police have made an arrest and the government has laid charges against the abuser. Victim Service Workers A woman in an abusive relationship should contact a victim service worker for information on her options and to learn about consequences of certain actions (e.g., calling the police may result in her partner s arrest if there is enough evidence). Victim service workers offer abused women the following services: Emotional support Filling out forms and writing letters Explaining rights and the court process Attending court Information about a case Referrals to other community services Assistance in obtaining a peace bond or restraining order VictimLINK is a 24-hour, multilingual, province-wide phone service that provides information and immediate crisis support. VictimLINK victim service workers provide information and support to all victims of crime, family and sexual violence, violence in relationships, elder abuse and adult survivors of physical or sexual abuse, and provide referrals to community, social, health, justice and government resources. Call toll-free or visit Ministry of Public Safety directory of B.C. victim services victim_services/directory/index.htm MOSAIC Multicultural Victim Support Services Program Battered Women s Support Services (BWSS): Peer-support service for adult women in or survivors of abusive relationships Women can call a transition house for emotional counselling and information. MOSAIC: Public Legal Education Project for Newcomers Revised November
30 Safety Plans If you are a woman in immediate danger of being or who has been hurt call the police (9-1-1). The police may arrest the abuser if there is enough evidence. The police can also take you to a safe place. If you re a woman in an abusive relationship, you need a safety plan. Victim service workers can help you develop a plan, which may include: Telling neighbours or friends to call the police if they hear frightening or loud noises, or if they see anything suspicious Memorizing the phone number of a transition house or safe home Thinking about where you and your children can go if you decide to leave (somewhere your abuser will not know to look for you) Putting money away, a little at a time, and canceling joint credit cards Packing a suitcase and leaving it with a friend Putting an extra set of keys for the house/car in a safe place Getting legal advice Putting ID, passports and other important papers in a safe place Women s Shelters Transition houses provide temporary housing in a safe, secure environment for women leaving abusive relationships and their children. Women usually stay in a transition house for less than a month. Safe homes provide short-term accommodation (one week or less) in communities where transition houses do not exist. These may be rental apartments, private homes or hotel units. See Appendix III, page 91, for a listing of women s shelters. Second-stage housing is available when your stay at a transition house ends, where residence lasts sex to 12 months. When you and your children stay at a transition house, you receive priority placement for BC Housing ( MOSAIC: Public Legal Education Project for Newcomers Revised November
31 Peace Bonds, Restraining Orders and No-Contact Orders Peace bonds, restraining orders and no-contact orders are protection orders made by a court judge to protect you from another person. Peace Bond A peace bond is an order made in criminal court ordering an individual to behave well and keep the peace for up to 12 months. Usually the Court Order prohibits one individual from having any direct or indirect contact with another individual, or a woman and/or child. The individual must stay away from where the other individual lives and works and cannot contact her by phone or mail, or get anyone else to contact her for him. A peace bond can be used for protection from anyone, including person an individual has only been dating a short while. Application for a peace bond does not require a lawyer; the police will apply for you and Crown Counsel will handle the case in court. There is no fee and the peace bond is enforceable across Canada. A peace bond is not a criminal charge. However, if the man disobeys the peace bond, the police can arrest him and charge him with a criminal offence. Restraining Order A restraining order is a civil court order stating a man must stay away from his expartner and/or child, and stay away from where she and the child live, where she works and where the child goes to school. The judge can also order the man not to contact the woman by phone, mail or through others. There must be a family connection between the two parties (marriage or a common-law relationship or children). There s no time limit for the order unless the judge places an expiry date. A restraining order should have a police enforcement clause so if the man violates it, the woman can call to have the police take the necessary steps to enforce the order. A restraining order isn t a criminal charge. However, if the man disobeys the order, the police can arrest him and charge him with a criminal offence. It is advisable to obtain legal advice or assistance from a family law lawyer for this application. You will be responsible for paying for the lawyer s fees unless you qualify for legal aid (see page 25). There is no fee to apply for a peace bond, but in Supreme Court you will be required to pay the filing fee unless you qualify for legal aid. Restraining orders are enforceable within B.C. but may not be enforceable in other provinces. If you move, you may have to apply for another restraining order in another province. MOSAIC: Public Legal Education Project for Newcomers Revised November
32 No-Contact Order When a man has been arrested for hitting or threatening his partner, a judge can make a no-contact order as a condition of his release. It is a temporary order that states the man must stay away from his partner and/or child until he has a hearing or trial. If he breaks the order the police can re-arrest. A woman should not rely solely on a peace bond, restraining or no contact order for her safety. It is very important she also makes a personal safety plan (see page 29). LSS s For your Protection: Peace Bonds and Restraining Orders can be downloaded at Refugees and Immigrants Newcomers to Canada who face abusive relationships need to know: If they have permanent residence status, they will not be deported If they leave the relationship, even if their partner is sponsoring them, they may be eligible for social assistance If they are refugee claimants or do not have permanent residence status, they should get legal help right away; Canadian immigration policies offer some protection to women being abused their partners If they are sponsoring their partner and the partner assaults them, they should get legal help See page 18 for more information on immigration issues. More Information BC Institute Against Family Violence Assisting immigrant and refugee women abused by their sponsors Dial-A-Law Program Tape 155: Family Violence Government of British Columbia, Women s Services Division Legal Services Society For Your Protection: Peace Bonds and Restraining Orders: subject.aspx?s_id=15 Legal Information for Battered Women: subject.aspx?s_id=15 MOSAIC: Public Legal Education Project for Newcomers Revised November
33 Living Together, Living Apart Common-law relationships, Marriage, Separation and Divorce: publications/pub.aspx?p_id=72 Speaking of Abuse: MOSAIC Multicultural Victim Support Services: Men in Change: MOSAIC: Public Legal Education Project for Newcomers Revised November
34 CHILD PROTECTION MOSAIC: Public Legal Education Project for Newcomers Revised November
35 There are specific laws to protect the rights and safety of children. These state parents (and other caregivers) must ensure children are safe and have enough food, clothing, shelter and healthcare. Laws protect children who are abandoned, neglected, physically abused, emotionally harmed or sexually abused or exploited. Child Abuse There are different types of child abuse: Physical Abuse Physical abuse is any physical force that causes injury to a child, including the use of excessive force to discipline children and other punishments like locking children in a room without food, water or a toilet for a long time. Sexual Abuse Sexual abuse is any sexual behaviour by an adult toward a child, including sexual touching, making a child watch sexual acts and obscene gestures. It is also illegal to let others have sex with your child. Emotional Abuse Emotional abuse is destructive behaviour or verbal attacks by an adult on a child, including rejecting, terrorizing, ignoring or isolating a child, blaming or calling a child names. Constant emotional abuse can lead to severe emotional damage. Children may live in a home where they are not physically hurt but the parents hurt each other this can be emotionally abusive for the children. The ministry may remove children from the home if it believes they cannot be protected from seeing abuse or being abused. Child Neglect Neglect is the failure to provide for a child s basic needs food, clothing, safe shelter, supervision and medical care. Duty to Report Child Abuse The law requires that anyone (neighbours, teachers, doctors, etc.) who believes a child has been, is being or is likely to be abused or neglected must report this to the Ministry of Children and Family Development (MCFD) or call the Helpline for Children. Child protection social workers must follow up on all reports of neglect and abuse. They cannot tell parents the names of informants of abuse. A child protection social worker will visit the family to check on the child to determine if the child needs protection. They may contact the police or other MOSAIC: Public Legal Education Project for Newcomers Revised November
36 agencies if necessary. The social worker may help develop a plan of care or remove the child from the home (referred to as child apprehension). Plan of Care A social worker will work with the parents and others close to the child to develop a plan of care, which describes what should be done to protect and support the child. For example, the social worker may arrange for counselling or parenting programs. If the child is 12 years or older then his/her wishes will be considered in the development of the plan. Child Apprehension If a social worker believes a child is in immediate danger, he/she can remove the child from the home to a safe place, preferably with the child s immediate family, such as the other parent or an older brother or sister. The second choice is to place the child with another family member, such as an aunt or grandparent. If the child cannot be placed with family then the child will be placed in temporary care (likely a foster home) until a judge decides what is best for the child. In child apprehension situations, the social worker and parents will have to go to court, where the social worker must prove the child was in danger. The parents have the right to argue that the child should not be taken away from them. The parents should get a lawyer as soon as possible. If they cannot afford a lawyer they can contact LSS ( ) or LawLINE ( ). More Information Dial-A-Law Tape 141: Child Protection and Removal Tape 156: Reporting Child Abuse Legal Services Society If Your Child Is Taken by the Ministry of Children and Family Development: Parents Rights, Kids Rights: People s Law School Caring for Children: Parents Rights and Responsibilities: The Child s Right to Love: MOSAIC: Public Legal Education Project for Newcomers Revised November
37 SEPARATION MOSAIC: Public Legal Education Project for Newcomers Revised November
38 As soon as a couple starts living apart, even if they still continue to live in the same house, they are separated. This applies to both married couples and common-law couples. A couple does not need to get a legal document stating they are separated. It is possible for a couple to live in the same home and be separated. What to Take When Leaving When a person decides to end their marriage or common-law relationship, there are certain things the person should take with them when leaving the home: Financial documents, such as tax returns and banking statements Medical card Passport and other immigration papers Jewelry Children s birth certificates, medical cards, passports and clothing Half the money in joint bank accounts (if possible) It is helpful to take with you information about the other person s assets, such as photocopies of pay stubs and tax returns. Make a note of the other person s Social Insurance Number; it can be useful later if there are disputes about money and property. Decisions to be Made When a couple separates they need to consider the following questions: Custody and Guardianship: where will the child live? who will make decisions respecting the child? Access: what arrangements will be made so that the child can see both parents? Child support: how will the parents support the child? Spousal support: how will the adults support themselves? Home: who will stay in the home? Property division: how will they divide things they own together or separately? Separation Agreement A separation agreement is an agreement that a married or common-law couple enters into at the end of their relationship. It sets out their agreement regarding issues arising at the end of their relationship, including the division of property, custody and guardianship of the children, access to the children, child and spousal support. MOSAIC: Public Legal Education Project for Newcomers Revised November
39 Family justice counsellors can help people prepare written agreements. Mediators can also help people come to an agreement. See pages 7 and 70 for more. If a couple reaches an agreement themselves (with or without the assistance of others), it should be reviewed by each party s own lawyer before they sign it to make sure the agreement is fair. Each person should get advice from a different lawyer. A court may not uphold a separation agreement if one of the parties does not have independent legal advice. Consent Order For increased certainty and to avoid future conflicts, parties to a separation agreement may decide to incorporate its terms into a consent order a court order that sets out what the parties have agreed to, has the same effect as any other court order and entitles the parties to the same enforcement mechanisms available for any other court order in cases of non-compliance. A consent order can also change the terms of an existing order if both parties agree to the change. Interim Order Before the trial, the court can make an interim order or the parties can put their agreement into an interim consent order. The interim order deals with what should happen until trial or until the parties are able to reach a final agreement. An interim order therefore is effective pending final determination of the issues between the parties. Court Order A court order is necessary when separated parties are unable to agree as to how the property division, maintenance, custody and access issues are to be dealt with. The court makes an order after a trial and hearing the evidence of the parties. Parties can call witnesses in support of their position in complex cases. Note: There are time limits on getting certain types of court orders, so it is important to get legal advice as soon as possible. Children A judge reviewing an agreement or making an order will decide what is in the best interests of the children. The wishes of the parents, although considered, are trumped by what the court decides is in the best interests of the children. MOSAIC: Public Legal Education Project for Newcomers Revised November
40 Enforcing the Agreement If a separation agreement is incorporated in the terms of a court order, the parties to the agreement can ask the court to enforce the parts of the order that deal with custody, guardianship and access. If the order or agreement deals with child or spousal support, a spouse can choose to enroll in the Family Maintenance Enforcement Program. The FMEP is responsible under the Family Maintenance Enforcement Act for monitoring and enforcing all maintenance orders and agreements that are filed with it. FMEP s functions are to: Calculate, receive, record and forward payments to the person receiving maintenance (the recipient) Take action if and when necessary to try to ensure the person who is supposed to pay maintenance (the payor) makes the required maintenance payments Visit More Information Dial-A-Law Program Tape 115: Separation and Separation Agreements Tape 116: Separation: deciding who Will Move Out Legal Services Society Living Together, Living Apart: Common-law relationships, Marriage, Separation, and Divorce Ministry of Attorney General Family Justice Separation and Divorce MOSAIC: Public Legal Education Project for Newcomers Revised November
41 DIVORCE MOSAIC: Public Legal Education Project for Newcomers Revised November
42 Divorce ends a legal marriage and therefore cannot be obtained by common-law spouses. The Supreme Court of British Columbia can grant a divorce on the basis that: The parties have been living separate and apart for at least one year One of the spouses committed adultery, namely, sexual intercourse with another person who is not the other spouse One of the spouses is physically or mentally cruel toward the other spouse to such an extent as to render the continued cohabitation of the parties intolerable A spouse can begin divorce proceedings at any time after separation, but the court cannot grant a divorce unless the parties prove one of the above basis for granting a divorce. Living separate and apart for at least one year is the most common basis for divorce and requires the least amount of evidence. Adultery and cruelty, on the other hand, are only used in exceptional circumstances. Adultery or cruelty may not be used as a ground for divorce if the misbehaviour has been forgiven or was conspired toward by the innocent spouse. In order to apply for a divorce in B.C., one of the spouses must have lived in B.C. for at least one year. Either spouse can begin the divorce proceedings. Note: Provincial Court has no jurisdiction to grant a divorce. Temporary Reconciliation A couple can get back together or reconcile for up to 90 days without affecting the one-year separation time period. If the parties reconcile for longer than 90 days, the one-year time period starts from the date of the last separation. Types of Divorce Proceedings Divorce proceedings can either be commenced by one party or jointly by both parties. Joint proceedings are where both spouses want to end the relationship and agree on the details of their divorce, including property division, custody, access and support of the children and spousal support. Where one party commences divorce proceedings, such can be uncontested or contested. MOSAIC: Public Legal Education Project for Newcomers Revised November