Understanding Family Law in BC, Canada

Being a spouse brings with it key legal rights and obligations, especially when a relationship ends. If spouses choose to separate, there are specific laws that determine how to manage the aftermath.
These laws can affect major aspects of your life, such as: 

• How your assets are divided, and
• Whether you may be required to pay or be eligible to receive spousal support.

Therefore, it's important to understand who qualifies as a spouse and when that spousal relationship started. You are considered a spouse if:

• You are or were married, or 
• You have lived with your partner in a relationship similar to marriage for a certain period of time, often referred to as a "common-law" relationship.

In a common-law relationship, you share the same rights and obligations as those who are married.

What is a spouse?

In British Columbia, under the Family Law Act, you are considered to be in a common-law relationship after living together in a marriage-like relationship for at least two years. However, if you and your partner have lived together for any period of time (even less than two years) and have a child together, you are regarded as common law for the purpose of spousal support only.

If you lived together in a marriage-like relationship before getting legally married, the law recognizes your spousal relationship as starting on the day you began cohabiting.

Determining when your spousal relationship began is crucial, especially for matters related to property division, as all property and debts acquired during the spousal relationship may be subject to division between spouses under the law. 

Even if you do not qualify as a spouse, certain elements of family law may still affect you, especially if children are involved or there are concerns regarding safety and protection.

There is no formal legal process required to be considered separated. You do not need to apply to the court for separation. A married couple or a couple in a marriage-like relationship is considered separated when at least one person decides to end the relationship and they stop living as a couple. 

While this often involves one person moving out, that’s not always the case. In some situations, separated couples may continue to live under the same roof but behave as though they are no longer in a relationship. For example, they may sleep in separate rooms, stop sharing meals, and no longer attend social events as a couple.

It is crucial to clearly establish the date of separation, especially if you are still living in the same home. This is important because any property or debt acquired up until the separation date may be subject to division between the spouses.

A divorce is a court order that officially ends a marriage. If you are married, you cannot remarry until you have obtained a divorce, no matter how long you and your spouse have been separated. Only legally married couples can get a divorce. If you were married outside of British Columbia, BC courts will typically recognize your marriage as legal if it was considered valid in the place where the marriage occurred, although there can be exceptions.

You are eligible to apply for a divorce in British Columbia if you or your spouse has lived in the province for at least one year before filing, and you meet all other requirements. A divorce can only be granted if there has been a "breakdown of the marriage." This breakdown can occur in one of three ways:

1. Separation for at least one year: You and your spouse have been separated for at least a year with no hope of reconciling. Temporary reconciliation (for 90 days or less) does not interrupt the one-year separation period. If you reconcile for more than 90 days and then separate again, the one-year countdown resets.
2. Adultery: One spouse engaged in a sexual relationship with someone else during the marriage.
3. Cruelty: One spouse has treated the other in a cruel manner. 

Adultery and cruelty must be proven in court, which can be complex, so most people opt to wait for the one-year separation and file under that basis.

If you have children, a judge will only grant a divorce order once they are satisfied that reasonable arrangements for the children's care and support, including adequate child support, have been made.

You may submit some of the required documents to the BC Supreme Court before reaching the one-year separation mark, but the court will not finalize the divorce until a full year has passed.

In British Columbia, most separating spouses are able to resolve key issues without needing to go to trial. Some couples may have already established agreements before the relationship ended, such as prenuptial or cohabitation agreements. Many others will come to an understanding after separation through what is commonly referred to as a separation agreement. 

If you are married, while the Supreme Court is still required to grant the divorce order, resolving all other matters beforehand can significantly speed up the process. You and your former partner may be able to reach agreements independently, but sometimes assistance is needed. There are various services available to help separating couples reach an agreement, including:

• Mediation
• Lawyer-led negotiations
• Family justice counsellors
• Collaborative family lawyers

If separating spouses cannot agree on the issues, they will need to file court documents, and a judge will decide the outcome of their family law disputes. This court process can be expensive and stressful, often intensifying the conflict between the spouses. Research shows that conflict-based divorces rank among the most stressful life events and can negatively affect the well-being of both parties. 

Additionally, children involved in prolonged, high-conflict separations often experience significant emotional and psychological harm.

The two primary laws governing separating couples in British Columbia are:

• The Divorce Act, a federal law that applies across Canada.
• The Family Law Act, which is specific to British Columbia.

If you were never married, you do not need to concern yourself with the Divorce Act, as it only applies to couples who are or were legally married. Unmarried couples will have any family law matters handled under the Family Law Act.

If you are or were married, you have the option of using either the Divorce Act or the Family Law Act to address issues such as parenting arrangements, child support, and spousal support. However, disputes involving family property, such as the division of assets and debts can only be addressed under the Family Law Act. Similarly, only the Divorce Act can be used to legally obtain a divorce.

It is common for married couples to use both the Family Law Act and the Divorce Act. For instance, they may resolve matters related to property, child support, and parenting arrangements under the Family Law Act while using the Divorce Act solely to formally end the marriage.

LEGAL ISSUES                                         DIVORCE ACT                 FAMILY LAW ACT (FLA)

- Divorce                                                          (Yes)                                         (No)

- Child Support                                                (Yes)                                         (Yes)

- Parenting Arrangements                               (Yes)                                         (Yes)

- Spousal Support                                            (Yes)                                         (Yes)

- Property Division                                          (No)                                          (Yes)

- Protection Orders                                          (No)                                          (Yes) 

In British Columbia, both the Supreme Court and the Provincial Court deal with similar types of cases. However, in some situations, you don’t have a choice in which court to attend. For instance, if you're married and seeking a divorce, you must file with the Supreme Court. Additionally, if you want to modify an existing court order, you typically need to return to the same court that issued the original order.

In certain situations, you can utilize both the Supreme Court and Provincial Court for different aspects of your case. For example, if you're married, you can: Obtain orders related to parenting arrangements and child support in Provincial Court, and file for your divorce in Supreme Court.

This approach may help you save both time and money, particularly if you and your spouse are in agreement about splitting the legal processes between the two courts. By handling some matters in Provincial Court, which is generally more accessible, and reserving Supreme Court for the divorce, you can streamline the process and potentially reduce costs.

Exclusive Supreme Court orders:

• For a divorce or annulment.
• To divide property or debts.
• To set aside or enforce an agreement dealing with property or debt.
• For a parentage order when a child has been conceived through assisted reproduction and there’s disagreement about who all the parents are.
• To appoint a trustee of children's property.
• To arrange an adoption.

Both Supreme Court and Provincial Court orders:

• For child or spousal support.
• For guardianship under the Family Law Act.
• About parenting arrangements: allocation of parental responsibilities and parenting time under the Family Law Act.
• For contact with a child under the Family Law Act.
• To protect your property or let you stay in the family home.
• To get a family law protection order (including an order that the other spouse must not come into the home)
• To set aside or enforce an agreement dealing with guardianship, parenting      arrangements, contact with a child, or spousal or child support.
• About relocation (whether someone is moving with or without a child).
• To figure out who the father of a child is.

Supreme Court:

• Fewer court locations, which might mean traveling further.
• Involves more paperwork, which means extra forms and more out of pocket money.
• The proceedings are more formal, requiring adherence to specific courtroom protocols.
• Stricter rules and procedures, which may cause frustration, judgment not in your favour, and more money.
• More lawyers providing legal representation and fewer people representing themselves.
• Required to provide written evidence about your case, which means writing an affidavit that outlines your version of events under oath.
• There are expensive fees associated with filing documents in Supreme Court, so be prepared for additional costs. The court registry absorbs the filing fees and the cost for an attorney dramatically increases because they charge extra for travelling and filing.
• The court can also order one party to pay the other party’s legal COSTS and EXPENSES.

Costs & Expenses:

• If one party disobeys a court order or abuses the court process in certain ways, it can result in unexpected financial consequences for the other person. In such cases, the court may refer to expenses instead of costs.
• While costs typically refer to legal fees and other court-related expenses awarded to the winning party, expenses are different. The court may order one person to pay the expenses of the other if their actions caused unnecessary complications or delays, such as failing to follow court orders or filing frivolous motions.
• This distinction is important, as being required to pay another party’s expenses usually arises from behaviour that disrupts or misuses the legal process, and it is meant to compensate for the financial burden this creates, beyond standard legal costs.

Provincial Court:

• Provincial Court is available in more locations, making it more accessible for most people.
• The paperwork involved is generally simpler and less burdensome.
• A less formal atmosphere, which means the court proceedings are more relaxed, making it easier for those unfamiliar with the legal process.
• Less and more flexible rules, which can make the process less intimidating for those self-representing.
• More common for individuals to represent themselves, though some may still choose to hire lawyers.
• Provincial Court, you have the option to present your evidence both in writing and verbally. In contrast, in Supreme Court, you're limited to addressing evidence that has already been detailed in your affidavit, meaning your verbal testimony must align strictly with the written evidence you’ve submitted.
• Filing fees are not required in Provincial Court, making it a more affordable option. However, if you choose to have a lawyer file on your behalf, you should be aware that they will charge fees for their services.
• Can award expenses but not costs, meaning the court can order one party to cover the other’s expenses due to misuse of the court process, it cannot award costs for legal fees. (See Costs and Expenses above for more details on the difference.)

Supreme Court is designed to handle more complex cases, often requiring the expertise of family law lawyers who have extensive legal education and training. In contrast, Provincial Court is less complex and more accessible, making it easier for individuals, even those with just a high school diploma, to navigate the process without the need for a lawyer.