Commonly Asked Questions

Commonly Asked Legal Questions & FAQs

Have Legal Questions? Check out these quick FAQ’s, courtesy of Heath Law.

Provided below is a quick overview of some of the most commonly asked legal questions received by the barristers and solicitors at Heath Law, one of Nanaimo’s most trusted law firms. The list is by no means comprehensive, and if you don’t see the answer to your question here you may find something of interest in our blog. Simply click here for more articles, or keep reading below.

Although we do our best to keep our website content current and up-to-date, the world of law is ever-changing, so although our blog and commonly asked questions page are here for a quick answer it is not intended to be used as or to replace legal advice. If you have a legal issue please contact Heath Law by phone Toll Free: 1-866-753-2202 or Email: consult@nullnanaimolaw.com

Common Family Law Question & Answers

Can a mother move a child away from the father in Canada?

Only in very specific circumstances. If the guardians of the child have equal or near-equal parenting time, then the relocating guardian must demonstrate workable arrangements to maintain the child’s relationship with the other guardian, the proposed move must be made in good faith and the proposed move must be in the best interests of the child.
Positive factors making the move more likely include better job prospects for the moving partner, unique educational options, and the presence of family violence. Factors opposing the move would include a hazard to the child’s relationship with the non-moving guardian and the child’s friends.

Do grandparents have any legal rights in BC with respect to their grandchildren?

Yes. Section 59(2) of the Family Law Act gives a grandparent the right to seek contact with their grandchildren.
Contact under the Family Law Act is the time that a person who is not a guardian spends with a child.

At what age does divorce not affect children?

Divorce will always have an emotional impact on the children but in terms of financial obligations, only a “child of the marriage” is eligible for support.
A “child of the marriage” must be under the age of 19 or unable to withdraw from the parents’ charge because of illness, disability, or other cause (if the child is in university for example).

What are Support obligations for a child born outside of the marriage?

Persons qualifying as parents or guardians are liable to pay child support. Parents include a child’s biological parents as well as step-parents.
If a step-parent or any guardian who is not a child’s biological parent has support obligations their support obligations are secondary to the obligations of the child’s biological parents.

Can you go to jail for not paying child support?

Yes, it is possible that one could be sentenced to for up to 30 days for failing to pay support: s.231(2) Family Law Act. This is, however, an extraordinary remedy.

Does child support consider the number of children in each home?

Yes. In most cases involving child support, the Child Support Guidelines set out the rules for the calculation of child support. The residence of the children in split custody situations will be a factor the court considers when coming to a final amount payable as child support.

Can a parent withhold a child’s visitations from the other parent(s)?

If a parent has been wrongfully denied parenting time a court can among other things, order the parties to participate in family dispute resolution, order the parent withholding the child to pay compensation to the other parent or specify a period of time during which the non-withholding parent may be entitled to extra parenting time with the child.

How does the custody of toddlers work?

A child’s age is but one consideration for a court when it is making decisions regarding child custody. The most important and overarching consideration is always “what is in the best interest of the child”.

How to get divorced in BC?

To get a divorce in BC, you must make an application to the BC Supreme Court. The court will only grant a divorce if the party applying shows:
– The parties have lived apart — been separated — for at least one year, or
– one of the parties committed adultery, or
– one of the parties was physically and/or mentally cruel to the other.

It is possible to get a divorce without physically being present in a courtroom. This is called a desk order divorce.

If a parent has full custody of a child is it easy for a step-parent to adopt?

Generally, consent is required from both of the biological parents. In certain situations, however, the court can dispense with the consent of one of the parents. Examples of when the court would dispense with consent would include:
– the person whose consent is to be dispensed with is not capable of giving informed consent;
– reasonable but unsuccessful efforts have been made to locate the person whose consent is to be dispensed with; and
– the person whose consent is to be dispensed with;

    • has abandoned or deserted the child,
    • has not made reasonable efforts to meet their parental obligations to the child, or
    • is not capable of caring for the child.

In a common-law relationship who gets the house upon separation, if the title is in one person’s name?

If the house is considered “family property” each of the spouses has a share in the house. It is not as cut and dry as only one spouse being entitled to the house. Each case will depend on its own facts. The usual factors to be considered include when the house was purchased; when the relationship began; and any increases in the value of the house since it was purchased.

Common Estate Law Questions & Answers

How long do you have to contest a will?

A proceeding for the variation of a will must be commenced within 180 days from the date of probate.

COVID-19 Questions & Answers

EMPLOYMENT QUESTIONS

My employer told me that I am being only temporarily laid off.  Am I being fired?

A temporary layoff is a specific type of layoff where employers don’t have to pay severance. An employer could only issue you a temporary layoff if you work in an industry where layoffs are standard practice (e.g., forestry), you agree to the layoff, or the employer’s right to lay you off is expressly stated in your employment contract. Otherwise, a temporary layoff is a termination of your employment and you have a right to receive severance pay. The amount of severance will depend on your length of service, the position you held, your level of responsibility, what your employment contract may say about severance as well as other matters. You should also review the BC Employment Standards Act.

Is my employer permitted to ask me if I have or had COVID-19?

An employer has a legal responsibility to ensure that all employees are working in a safe environment.  It would not be uncommon for an employer to require disclosure in response to the following questions:

  • Have you been diagnosed with COVID-19 or experienced any of the following symptoms within the last month: Fever, cough or difficulty breathing?
  • Have you had close contact with anyone that had a confirmed or probable COVID-19 case?
  • Have you travelled internationally within the last 14 days (i.e. returned home from another country)?

Your employer can also remind you to wash your hands and tell you to be prepared to work from home.

RENTAL ACCOMMODATIONS QUESTIONS

I’m renting a basement suite in someone’s home, do I have to inform my landlord if I’ve tested positive for COVID-19?

You are not obliged to disclose any private medical information to your landlord however in order to protect everyone near you may choose to inform your landlord to ensure that they (or their family members) should protect themselves by not entering your suite or coming into contact with you.

I can’t pay my rent, can I be evicted during the Pandemic?

The government of British Columbia has prohibited residential tenancy evictions at this time. You cannot be evicted.

LEASING OF COMMERCIAL SPACE

My business had to close due to COVID-19, do I still have to pay my rent?

Yes; the landlord can demand the rent and you remain legally obligated to pay.  It is recommended that you speak to your landlord, explain the circumstances and try to make alternate arrangements.

TRAVEL RESTRICTIONS

What are Canada’s current travel restrictions?

  • Canada has an official global travel advisory in effect: Avoid non-essential travel outside Canada until further notice. And avoid all travel on cruise ships.
  • Canadians returning to Canada from another country must self-isolate or quarantine for 14 days, depending on if they have symptoms.

If you have any symptoms of COVID-19 you can’t travel by air or train within Canada.

Non-Residents are prohibited from entering Canada in almost all cases.