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Frequently Asked Questions - Family Law

Upon what basis can I get a divorce?

After parties are married there are three bases upon which a divorce can be obtained. A party can obtain a divorce based upon the other party's adultery (i.e., having sexual intercourse after marriage), one party treating the other in such a cruel matter that their continued cohabitation is impossible, or after living separate and apart for one year.
Certain grounds for divorce like adultery need to be corroborated in some way. Others, like living separate and apart for one year can be dealt with without the need for corroboration.
Although quite often the time of separation is calculated from the time that one party leaves the matrimonial home, parties can be living under the same roof and be separated. Whether or not you are separated while still living with the other party depends on your circumstances.
Once there are grounds for divorce, the only basis upon which the court can deny you a divorce is if the children of the marriage are not financially looked after. Otherwise, if there are grounds for divorce, you do not need the other party's consent to obtain a divorce. When contemplating a divorce proceeding, you should contact us and we will help you to determine the date of your separation, the needs of your children, and the most appropriate way to expeditiously help you obtain a divorce.

How quickly can I get a divorce?

If you have no children and there are no disputes about asset division, you can usually obtain a divorce in British Columbia within three to four months. It will take longer if the other person resides in the United States or outside North America. These types of "uncontested divorces" are handled without court appearances and we can prepare the documents on your behalf. Usually this will require only one or two meetings with us.

Can I begin dating before I get a divorce?

You can begin dating before you get a divorce. As there is no fault divorce in British Columbia from a strict legal perspective this should have no or little bearing on the outcome of your case. However, if you make this decision you should use discretion in your disclosure of this fact. A new relationship often causes an emotional reaction for children and former partners that can often make cases more difficult to resolve by consent and further at times this decision can have an impact on determinations of child custody and access.

What will happen to my claim over the marital home, should I leave the home prior to getting a divorce?

As the law in British Columbia is a no fault law with respect to asset division, the fact that you leave the matrimonial home will generally have no bearing on your ability to share in assets like the matrimonial home. However, if parties have children, quite often, the person who remains in the matrimonial home may have from a practical perspective, an advantage in a custody dispute regarding children as the children are familiar with this environment.

As well, if it is determined that children should remain residing in the matrimonial home this can sometimes lead to a temporary order which will leave the custodial parent with control of the home and resulting in a delayed asset division.

In some circumstances it is however important that one party leave the matrimonial home for their own protection or that of the family. In this context, the complex issues of domestic violence can play a role. Given the complex nature of the decision to leave the matrimonial home, it is important that you consult with counsel prior to leaving the matrimonial home. If you are contemplating such a move, contact us for an appointment.

What is mediation?

Mediation is a process where a neutral third party assists two people who have separated to come to an agreement regarding the matters that result from the breakdown of their relationship. The mediator cannot give legal advice to either party and is not a judge. Mediation can be a good and effective way to resolve a family law problem, but is only successful where both parties desire compromise. You should contact us to explore the issue of mediation further if you are interested in this process.

What is shared parenting?

Shared Parenting is a concept that involves custody arrangements that require the parties to agree to a shared parenting plan, which would provide for the sharing of responsibility regarding the raising of the parties' children. The central theme is that parents of children should come together in the best interest of their children and develop a joint parenting plan involving the various aspects of their children's lives. There was some discussion in a recent joint committee report of Canada's Parliament regarding amending the Divorce Act to require a shared parenting plan be implemented upon divorce. These recommendations have yet to become law. We promote where possible the idea of shared parenting to avoid costly custody disputes for our clients. You should contact us if you wish to discuss your shared parenting options.

How does court decide about custody and access?

If parties are married and have a child or children, the custody and access each party will have with the children is determined under the Family Relations Act if people are unmarried or married but do not wish to get a divorce. If parties are divorcing, they can have their rights to custody and access determined under the Divorce Act.

There is essentially no difference between the two statutes and the issues of custody and access in each case will depend on the determination of the "best interest" of the children. In determining what is best for any child, the courts will look at many considerations that can include the following:

a) The willingness of each parent to facilitate access to the other parent claiming custody;

b) The issue of who has been the primary care taker of the children;

c) The ability of the parties to communicate effectively for the benefit of the children;

d) The desire to maximize the contact of each parent with the children after the parties separate;

e) The living arrangements of each party and each party's ability to care for the children;

f) The special, emotional, and other needs of individual children including those needs that relate to education, medical care, and individual, physical or emotional challenges.

Who ultimately has custody of the children after separation can have a serious impact on the division of assets and debts as well as the income of each party post-separation. Prior to making any decisions regarding custody, you should discuss with us your options for coming to a mutually beneficial custody and access arrangement that will promote your relationship with your children and minimize the negative consequences of prior court decisions upon you.

How do I determine entitlements to child support and spousal support?

In both the case of married and un-married relationships, parties can apply to court for the other party to pay them child support for the benefit of their children.

Children can include not just a persons biological children, but children who are the other party's children from a prior relationship. In this context, whether or not the claim is made in a married or unmarried situation, a schedule known as the Child Support Guidelines sets out the basic requirements of child support for the non-custodial spouse.

The court has jurisdiction in limited circumstances to vary the Guideline amount of support payable by the non-custodial spouse. Factors which can be included in this determination are: the debts of the parties, their legal responsibility to support others, the parties' incomes and standard of living, and the amount of time each party spends with the children.

As the determination of final support often relates to the issue of custody and access, you should obtain legal advice prior to coming to a determination of your support obligations.

The issue of spousal maintenance is determined based upon the parties' needs and means post separation. Important factors include the roles of the parties during the relationship, ongoing child care responsibilities, the ability of the parties to maintain and obtain suitable employment and reasonable income subsequent to a separation, and the ongoing economic needs of each party in the context of the standard of living the parties enjoyed during the marriage and which they could be expected to enjoy after marriage.

For more information on Spousal and Child Support please click here.

Do I have the same rights upon separation if I'm living in a common law or same sex relationship?

The answer to this question depends upon the issue being discussed.

Contrary to popular belief, the term "common law marriage" has no real meaning in law in British Columbia. This is a term used primarily by the public to describe what they perceive to be a serious and ongoing relationship between two people, usually of the opposite sex.

If parties are married, they can apply for spousal maintenance under either the Divorce Act, or Family Relations Act simply because they are married and are deemed to be spouses under these acts.

If the parties are not married, they can apply for spousal support only if they have lived in a marriage like relationship for a period of two years and they apply to the court for an order of support within a year of the parties' separation. For this purpose, in the Family Relations Act a spouse includes a person who is in a same sex relationship.

If a person has resided with another party for a period of more than two years and has supported a child from the other party's prior relationship they can be obligated to pay child support for that child until the child is no longer a dependant child. In some cases this will mean that support can continue until the child is 19 or after 19 years of age, if the child is still dependant upon their parents. A common example of dependence is a child living at home with the party receiving support while the child is attending college or university.

For more information on Common Law and Same Sex Marriages please click here.

What is the Parenting After Separation Program?

Parenting After Separation is a 3 hour information session for parents and others who have a responsibility to make decisions for children.

Sessions are sponsored by the Ministry of the Attorney general. Their purpose is to help people make informed choices about family separation that take into account the best interests of children. Each session is led by facilitators experienced in helping families.

For more information on Parenting After Separation (PAS) click here.

Legislation

B.C. Supreme Court - Civil Rules
B.C. Supreme Court - Family Rules
Provincial Court - Family Rules
CanLII - Canadian Legal Information Database
Divorce Act, R.S.C. 1985, c.3 (2nd Supp.)
The Divorce Act governs family relations upon marriage breakdown.
Family Relations Act, R.S.B.C. 1996, c.128.
Together with the federal Divorce Act, this provincial statute regulates the majority of family law issues in British Columbia.
Federal Child Support Guidelines
Federal Child Support Guidelines – British Columbia Support Tables

Resource Websites

FinancialResources.ca
CanLII.org
Basics of BC Family Law - Child Support
Parenting After Separation
BC Supreme Court - Acts, Rules & Forms

Calculators

Child Support Guidelines – Support Calculator
Canadian Financial Resources – Financial and Family Law Planning Calculators

Organizations

Family Maintenance Enforcement Program
British Columbia Mediator Roster Society
B.C. Vital Statistics
B.C. Parenting Coordination

Access Resources

Supervised Visitation Network
TIN Harbour Services
Elizabeth Fry Society

Articles

Advisory Spousal Support Guidelines