Seperation And Divorce In BC: Property, Parenting Time, And Support Basics

Two overlapping legal frameworks 

Family law in BC is governed by two different pieces of legislation. The federal Divorce Act (the “DA”) and BC’s Family Law Act (the “FLA”). The DA pertains to married spouses and the FLA is applicable to both married and common-law spouses and provides guidance about property division, parenting arrangements and support issues.

Who counts as a “spouse” in BC 

Under the FLA, people are spouses if they are married to one another or have lived in a marriage-like relationship for at least 2 years. For the purposes of the FLA, the term spouse includes a former spouse. The relationship between the spouses begins on the earlier of either the date on which they began to live together in a marriage-like relationship or the date of their marriage. Under the DA, people are only spouses if they are legally married to each other. In certain circumstances, a former spouse may be included under the definition of spouse for the purposes of the DA.

Property division basics 

Under the FLA, spouses are both entitled to family property and responsible for family debt and, on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common and is equally responsible for family debt. Family property on the date the spouses separate includes property that is owned by at least one spouse, or a beneficial interest of at least one spouse in property.

Property excluded from family property includes

• property acquired by a spouse before the relationship between the spouses began;
• inheritances to a spouse;
• gifts to a spouse from a third party;
• a settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for loss to both spouses, or lost income of a spouse;
• money paid or payable under an insurance policy;
• excluded property that is held in trust for the benefit of a spouse;
• a spouse’s beneficial interest in property held in a discretionary trust to which the spouse did not contribute, and that is settled by a person other than the spouse;
• property derived from excluded property or the disposition of excluded property.

Parenting arrangements 

In family law there has been a shift away from using language like “custody” or “access” and a move towards using neutral language like “parenting time” and “parental responsibilities”. Under the FLA, parenting arrangements or contact with a child must be decided based on the consideration of the best interests of the child only. Only a guardian may have parental responsibilities and parenting time with a child. Generally, if a child’s parents are living together and they separate, each parent of the child is the child’s guardian. A parent who has never resided with their child is typically not the child’s guardian unless the parent and all the child’s guardians make an agreement providing that the parent is also a guardian, or the parent regularly cares for the child. If a child’s guardian and a person who is not the child’s guardian marry or enter into a marriage-like relationship, the person does not become a guardian of that child only because of the marriage or marriage-like relationship.

Child and spousal support basics

Child and spousal support can be granted under the DA or the FLA. Under the DA, child and spousal support can be granted if a court, on application by either or both spouses, makes an order requiring a spouse to pay the support. The federal Child Support Guidelines dictate the amount of child support to be paid and the circumstances in which discretion may be used in the making of an order for child support, in addition to authorizing courts to make other determinations. These federal child support guidelines also address the determination of income and authorize a court to impute income for the purposes of the application of the guidelines. In making a determination about spousal support the court will look at factors such as the length of time the spouses cohabited; the duties of each spouse during cohabitation; and any order, agreement or arrangement relating to support of either spouse.

Under the FLA, each parent and guardian of a child has a duty to provide support for the child, unless the child is a spouse or is under 19 and has voluntarily withdrawn from the parents’ or guardians’ charge for reasons other than family violence. A stepparent does not have to provide child support for a child unless the stepparent contributed to the support of the child for at least one year. A child support agreement is only binding if the agreement is made after separation, or when the parties are about to separate. A court must at least consider the federal child support guidelines when making a determination about the amount of child support. When making a decision regarding spousal support, the court must consider the conditions, means, needs and other circumstances of each spouse. This includes the length of time the spouses lived together, the functions performed by each spouse during the period they lived together, and an agreement between the spouses relating to the support of either spouse.

Why “DIY” separation agreements are risky 

Separation agreements drawn up and entered into by parties without consultation with a lawyer are risky because the court may set them aside if they are not adequate. One example of this is, under the FLA, property division agreements may be set aside if the court finds that a spouse did not disclose property or debts, took advantage of the other spouse’s vulnerability, or did not understand the nature of the agreement.