One separation, two statutes
The Divorce Act is federal. It applies only to married spouses, and only within a divorce proceeding: it is the sole route to ending a marriage, and in that proceeding the court can also deal with parenting and support. The Family Law Act is provincial. It applies to married and unmarried couples alike, and it alone governs dividing property, debt and pensions. Married spouses can have some issues decided under one Act and others under the second, which is why each issue below is taken separately.
| Issue | Divorce Act (married spouses, in a divorce proceeding) | Family Law Act (everyone) | Court | Time to start |
|---|
| Ending a marriage | The only route | Not available | Supreme Court | Any time, but the year apart must be complete before the divorce is granted (unless adultery or cruelty is proved) |
| Parenting | “Decision-making responsibility” and “parenting time” | Guardianship, “parental responsibilities”, “parenting time” and “contact” | Supreme Court; Family Law Act cases also Provincial Court | Any time |
| Child support | Federal Child Support Guidelines | The same Guidelines | Supreme Court; Family Law Act cases also Provincial Court | Any time |
| Spousal support | Available to married spouses | Married spouses and unmarried spouses who qualify | Supreme Court; Family Law Act cases also Provincial Court | Family Law Act: two years (see below) |
| Property, debt and pensions | Not covered | Parts 5 and 6 | Supreme Court only | Two years (see below) |
| Moving with a child | Relocation rules in sections 16.9 to 16.96 | Relocation rules in sections 65 to 71 | Depends on the order in place | 60 days’ notice; 30 days to object |
Ending the marriage
Jurisdiction comes first: the BC Supreme Court may hear the divorce only if one of you was habitually resident in the province throughout the twelve months before filing. “Habitually resident” is not defined in the Act; it is a question of fact, and an unusual history (time abroad, two homes) needs advice. The only ground is marriage breakdown, shown by a year of living apart or by adultery or cruelty. Couples can be separated while still under one roof.
Two points in the Divorce Act catch people out. No divorce is granted until the judge is satisfied that the children’s support has been reasonably provided for; otherwise the divorce is put on hold. And a divorce takes effect on the 31st day after the judgment, not the day it is pronounced. The court can order an earlier date only in special circumstances and only if both spouses undertake not to appeal; if an appeal is pending, the divorce waits for it. Neither spouse is free to remarry until the divorce has taken effect. The filing steps are in our guide on how to file for divorce in BC, and our Vancouver divorce lawyers explain the service.
Moving with the children
Both Acts require notice before a parent moves in a way that would significantly affect a child’s relationship with someone else who has parenting time or contact, and the two schemes are similar but not identical.
Under the Family Law Act, where a written agreement or order about parenting arrangements or contact already applies, the relocating guardian writes to every other guardian, and to anyone who has contact, two months ahead (at least 60 days), stating when the move will happen and where to. A judge may waive that notice if it would expose someone to family violence, or if the child has no continuing relationship with the person entitled to it. Unless a guardian files for an order prohibiting the relocation inside 30 days of receiving the notice, the move can proceed as planned.
The Divorce Act version uses a federal form, served at least 60 days in advance, giving the expected date, the new address and contact details, and a suggested schedule for parenting time or contact after the move. An objection must arrive within 30 days, either on the federal objection form or as a court application. If the parents have in fact been sharing time roughly equally, it falls to the parent proposing the relocation to show that it serves the child.
Which scheme applies depends on the order or agreement already in place, and on whether a divorce proceeding exists. Get advice before giving or answering a notice.
Support
Whichever Act a case proceeds under, child support comes from the Federal Child Support Guidelines: from a table based on income and the number of children, with a share of special expenses on top. Spousal support has different sources: section 15.2 of the Divorce Act for married spouses in a divorce, and sections 160 to 167 of the Family Law Act for married and unmarried spouses. The objectives the two Acts set are worded almost the same: recognizing economic advantages and disadvantages from the relationship, sharing the financial consequences of caring for children, relieving hardship and promoting self-sufficiency. The amount is then checked against the ranges in the Spousal Support Advisory Guidelines, which are advisory rather than law. See child support, spousal support, our spousal support calculator and our article on income that changes from year to year.
Property, and the clock the divorce starts
Property and debt are divided only under the Family Law Act, and only by the Supreme Court. On separation the starting point is an equal split of family property and of family debt, unless an agreement or order says otherwise. Assets a spouse owned before the relationship, inheritances and gifts from third parties are kept out, but any increase in their value during the relationship is not. See property division, joint family ventures and how to protect an inheritance.
This is where the two Acts meet. For married spouses, the two-year limit to claim property, debt, a pension share or spousal support under the Family Law Act runs from the date the divorce order is made. A spouse who obtains a divorce without settling property has started that clock. For unmarried spouses, the two years run from the date of separation. Time stops running while the spouses are engaged in family dispute resolution with a family dispute resolution professional, such as a mediator, but the conditions matter and the dates should be recorded. Our article How Long After Separation Can You Claim Assets? explains the deadline.
Which courthouse
Supreme Court filings go to the Law Courts registry on Smithe Street (number 800), about 450 metres in a straight line from our office. Divorce, property and any case that combines them go there. A Family Law Act case about parenting, child support or spousal support can instead start in the Provincial Court at Robson Square, 800 Hornby Street, about 350 metres from the office. Rule 7 of the Provincial Court Family Rules sends a new case to the registry nearest the child’s main home, or, where no child is involved, nearest the home of whoever files first. For a child living in Mount Pleasant, Robson Square is about 2.5 km away in a straight line and Richmond more than 10 km, so Robson Square is the expected registry; confirm with the registry if you are unsure. Because Robson Square is one of the province’s early resolution registries, most applicants must first serve a Form 1 notice, meet a family justice counsellor for a needs assessment, finish a parenting education course and try at least one mediation or similar session; the Vancouver Justice Access Centre runs those services. Applications for protection orders and priority parenting matters can be made without waiting.
If one spouse lives outside BC, or the marriage or property is abroad, see international family law.
Our family lawyers
Judith A. Janzen heads family law at Onyx; called in 2000, she and Candace Cho, KC created the firm when they joined forces in 2012. With her are Rupinder Shoker, who has represented clients at four-way meetings, mediations and arbitrations; Susan Kim, a senior family and estate litigator; Louisa Ledesma; Shivleen Sidhu; Mason Heller; Rasjovan Dale; and Katya Richardson, who also takes limited-scope retainers. See the team page for full profiles, and our Mount Pleasant estate lawyers for wills and executors.
Common questions
We are married. Do we have to use the Divorce Act for parenting?
No. Married parents can resolve parenting and support under the Family Law Act, in either court, with or without a divorce. The Divorce Act applies to those issues only inside a divorce proceeding.
If I get divorced first, can I sort out the property later?
Yes, but the divorce order starts a two-year clock for property, pension and spousal support claims under the Family Law Act. Settle or start those claims within that time.
When can I remarry?
Not before the divorce takes effect, which is normally the 31st day after the judgment, and later if an appeal is pending.
My ex wants to move to Alberta with our son. What can I do?
If notice was given under the Family Law Act, apply to prohibit the move within 30 days of receiving it. Under the Divorce Act, object within 30 days using the federal form or a court application. Get advice at once.
How do you charge?
Hourly. Ask about retainers and rates when you phone (604) 900-2538.
