Whether you are at the beginning, middle or end of a separation, you are facing difficult decisions that will affect your future. There are so many issues that need to be resolved, from financial issues (e.g., child support and spousal support payments), to property division, to arrangements for your children.
You will be in a stronger position to plan for your future and make wise choices if you know the law. In British Columbia, the Family Law Act is the main law that applies to family law issues. It sets out the legal rights and responsibilities of all parties involved in a family law dispute.
The family lawyers at Onyx Law Group have a deep understanding of the legal issues surrounding separation and well-honed expertise in how the Family Law Act works. This article is intended to share some of our knowledge and arm you with an understanding of the fundamentals of the Family Law Act.
The Family Law Act has been the main family law in BC since 2013. Before then, a law called the Family Relations Act applied to family disputes in BC. When the new Family Law Act came into force in 2013, it brought about major changes in the way we approach family law matters and it also changed the language we use to talk about family law issues.
For example, the old Family Relations Act used the terms “custody” and “access” when talking about parenting children. Under the new Family Law Act, these terms have been replaced with child-centred language that focusses on parental responsibilities, parenting time, and the rights of children.
As mentioned, the new Family Law Act changed the way we approach family law matters. The new law does this by:
The Family Law Act also makes written family law agreements more difficult to change, as long as they are fairly negotiated, which further promotes out-of-court dispute resolution of family law disputes.
BC’s Family Law Act applies to married spouses and to unmarried spouses (i.e., people in a “common law” relationship). It also applies to people who have a child together, whether they dated or not. Because it deals with orders about children, the Act also applies to anyone who wants guardianship of a child or contact with someone else’s child, such as a grandparent.
Canada’s Divorce Act only applies to married spouses. There’s a lot of overlap between the federal Divorce Act and the provincial Family Law Act: both deal with child support, spousal support, and raising and spending time with children. But, of the two laws, only the Family Law Act deals with division of property and debt and getting protection orders to address family violence.
Most couples, whether they were married or not, use the Family Law Act to resolve their family disputes. That being said, if you are married and want to get a divorce, you must apply under the Divorce Act to the Supreme Court of British Columbia. Only the Supreme Court can make a divorce order to legally end a marriage.
Section 3 of the Family Law Act defines who is a “spouse.” It includes legally married spouses, as well as unmarried couples who have lived together in a “marriage like” relationship for a continuous period of at least two years.
If you are a spouse as defined in the Act, you are entitled to make a claim for division of propert and debt. You are also entitled to make a claim for spousal support.
On the latter issue, it is important to note that the definition of “spouse” in the Act also includes people who lived together for less than two years who have a child together, but only for the purposes of claiming spousal support. There is no entitlement to claim for division of property or debt in that situation.
If you are a parent, the Family Law Act sections dealing with spousal support, child support, and parenting arrangements apply even if you don’t meet the definition of a “spouse.”
That being said, the Act uses different terms to describe parenting issues that may be unfamiliar. Here are the key terms to be aware of:
BC’s Family Law Act is clear that the best interests of the child are the only consideration for parents and judges when making decisions about guardianship, parental responsibilities, parenting time, and contact with a child. An agreement or order is in the best interests of the child if it protects the child’s physical, psychological, and emotional safety, security, and well-being.
Section 37 of the Act sets out a list of factors to be considered when determining what agreement or order is in a child’s best interests. Judges and parents must consider all of the needs and circumstances of the child, as well as factors including the child’s health, the history of the child’s care, and the views of the child, where appropriate.
If family violence is an issue, there are additional factors set out in section 38 of the Act that must be considered to assess the impact of family violence on the child and determine what is in the child’s best interests.
The Family Law Act deals with two types of financial support:
The basic rule in the Family Law Act is that property and debt are split equally between spouses on separation. The presumption of equal division of property and debt can be overridden by a written agreement between the spouses to divide assets and debt in a different way. The court can also decide to divide property and/or debt unequally if it is satisfied that equal division would be “significantly unfair.”
Generally speaking, family property is what you and/or your spouse bought or accumulated during your cohabitation or marriage. It includes all assets and property owned by either one or both spouses at the time of separation, and any asset or property that one spouse has a beneficial interest in at separation. Examples include your family home, other real estate (cottages, investment properties, condos, etc.), RRSPs, RRIFs, TFSAs, bank accounts, investments, insurance policies, pensions, businesses, and certain types of property held in trust.
Family debt includes all financial obligations incurred by one spouse or both spouses during their relationship. It also includes debts taken on after separation if the debt was incurred to maintain family property. BC’s Family Law Act says spouses must equally share family debt even if one spouse’s name isn’t on the debt. Common examples of family debt include mortgages, loans, lines of credit, and credit cards.
Keep in mind that only legally married spouses and unmarried spouses are entitled to division of property and debt on separation, and that only the Supreme Court (not the Provincial Court) can make orders dealing with property and debt on separation.
Spouses can enter into a marriage agreement or other type of written contract to specify who owns what if they separate in the future. They can also enter into a separation agreement to divide family property and debt in a way they see fit.
Beyond that, it’s important to understand the concept of excluded property, which is built into the Family Law Act. Excluded property is presumed to remain the property of the spouse who owns it, but any gain in the value of excluded property over the course of the relationship is subject to equal division on separation.
Excluded property is property brought into the marriage or cohabitation by one spouse, inheritances received by one spouse, gifts to one spouse from a third party, settlement or damage awards to a spouse as compensation for injury or loss, insurance proceeds (other than a policy respecting property), and one spouse’s beneficial interest in property held in a discretionary trust.
The Family Law Act was recently amended to strengthen and clarify the rules respecting excluded property. The 2023 amendments make it clear that the property exclusion will still apply even if the property’s legal or beneficial ownership was transferred from one spouse to another. For example, if one spouse receives an inheritance and uses it to purchase real estate in both spouses’ names, its excluded character will not be lost if the spouses later separate. The inheritance can be traced back to the excluded property of one spouse.
If you have questions about your rights and entitlements under BC’s Family Law Act, Onyx Law Group is here to help. Our family lawyers have the expertise and knowledge to guide you through the process and answer any questions you may have.
Contact us today to schedule an initial consultation and take the first step towards a positive and successful outcome. Our lawyers are able to assist you in even the most high-conflict or complex family law matters.
Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at
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