What is the difference between the Family Law Act and the Divorce Act?

The Family Law Act is provincial legislation, whereas the Divorce Act is federal.

Both acts address parenting, child support and spousal support, but only the FLA deals with property division. Furthermore, you can only get a divorce under the Divorce Act. The Divorce Act only applies to married spouses. If you and your partner were married, you will need to decide whether you want to have parenting and support matters determined under the FLA or Divorce Act.

Regardless, divorce will be dealt with under the Divorce Act, and property division under the FLA.

I want to separate, or my partner has told me they want to separate - what are my legal rights and obligations?

If you and your partner were married, or living together for more than 2 years in a marriage-like relationship, you may have certain rights, obligations and responsibilities under the Family Law Act and/or the Divorce Act.

For example, you may be required to pay your partner spousal support or vice versa. Also, you may need to determine how to divide your property and debts.

Under the Family Law Act, those rights and obligations are generally the same regardless of whether you were married, or lived together in a marriage-like relationship for 2 years, however, there are some discrete but important differences, such as rules regarding when a family law action must be commenced.

How do I get started on resolving the issues that flow from a separation?

There are a number of issues that arise following separation, both short term and long term.

Depending on your situation, some immediate considerations include ensuring you and your children’s safety, securing family property to prevent dissipation or transfers to third parties, and determining interim living arrangements and the management of joint expenses while you resolve matters.

Long term, you and your partner will need to figure out issues like whether to sell the family home, a parenting schedule and division of holidays and special occasions, and how to divide investment accounts, RRSPs etc.

Do I have to go to Court?

No – there are a number of ways you and your partner can resolve matters arising from your separation without ever stepping foot in a courtroom. Every partnership is unique, and a one size fits all model to separation is not practical. There are a number of options depending on your family’s specific needs:

  1. In some cases, negotiation between two lawyers or mediation will result in a resolution and, ultimately, a signed Separation Agreement.
  2. Another option is for the parties to enter into a Collaborative Law Agreement, where the parties explicitly agree that they will not bring court applications and will solve their matters by way of four-way meetings with their counsel.
  3. If you and your partner can’t agree, you could attend arbitration. In arbitration, both parties present their case, and the arbitrator (usually, an experienced family law lawyer or former judge chosen by the parties) will make a binding final decision after hearing both parties’ cases.

Sometimes, Court is unavoidable. Even if a court action is commenced, this does not prevent you from exploring out of court resolutions, and it is very common for matters to resolve at some point between the start of a court action and the scheduled trial.

What do I have to do to get divorced?

There are two ways in which to obtain a divorce:

  1. At Court; or
  2. Desk-Order, where the necessary documentation is filed with the Court and there is no in-court appearance.

In order to be divorced, you must be separated for one year, unless there are circumstances which warrant a divorce earlier (i.e. adultery, cruelty). If you have children, the Court must be satisfied that reasonable arrangements are made for parenting and child support before a divorce will be granted.

Who decides who the children live with?

Oftentimes, matters respecting the children are the most difficult and emotional in separation. In addition to figuring out a regular parenting schedule, there are other important considerations – such as how decisions regarding important matters will be made (i.e. school, medical, religious) provisions respecting out of country travel, and sharing of holidays and important occasions.

There a number of different parenting arrangements and schedules. Deciding on which one is best will depend on the history of childcare, the needs of the children, the age of the children, as well as where each party resides. While ideally this is a decision parents may reach an agreement on, ultimately it will be left to a judge if there is no agreement. In order to assist the decision maker, there are child psychology experts that can prepare reports (Section 211 Reports) and provide guidance with respect to parenting arrangements.

What about child support?

Child support is usually somewhat more straightforward than spousal support. Child support is considered to be the right of the child, and all children under the age of majority (in B.C., 19) are entitled to be financially supported by both of their parents. That right may continue to exist beyond the child reaching the age of majority if they are unable to support themselves financially, for example, due to enrolment in post secondary school or disability.

Once a family separates, the parent who is not primarily living with the child (i.e. the parent who has the child for less than 40% of the time) has an obligation to pay the other parent child support. If the parents share parenting of the children on an equal or roughly equal schedule, both parents have an obligation to pay the other parent child support.

The Federal Child Support Guidelines determine a parent’s monthly child support obligation, which is based on a parent’s current gross annual income and number of children. A parent’s income is usually based upon the previous year’s income, but may be imputed if a parent is intentionally unemployed or underemployed. Each parent has an on-going obligation to provide income disclosure, and child support is to be adjusted based on changes to a parent’s income.

In addition to the monthly child support payable, parents are also responsible for a child’s section 7 or “special” expenses, proportionate to their incomes. These are expenses which are considered additional and not covered by basic child support, and can include expenses such as tutoring, daycare, extracurricular activities, and medical / dental costs not covered by insurance. It is important that parents turn their minds to what these agreed upon section 7 expenses are in advance, and before the expense is incurred.

Do I have to pay my ex spousal support? Can I get spousal support?

When considering spousal support, the first step is to determine whether spousal support is payable. Entitlement to spousal support may be established on a compensatory or non-compensatory basis.

  1. Compensatory: Entitlement to spousal support on a compensatory basis arises as a result of roles adopted during the relationship, and is intended to recognize the economic disadvantage arising as a result; for example, the economic disadvantage arising from staying home and out of the workforce to raise children.
  2. Non-compensatory (or needs based): Entitlement may arise purely due to a party’s financial needs, and the concept that both parties should, as much as possible, retain the same or similar standards of living after separation as they did during the relationship.

Also, there may be a contractual basis, for example, if you and your spouse had a Cohabitation or Marriage Agreement that specifies support is payable in the event of a separation. In many long-term relationships (20 plus years), there is both a compensatory and non-compensatory basis for entitlement.

There are a number of factors to consider to determine entitlement, and a full analysis into the history of the relationship must be conducted to determine if entitlement exists. Once entitlement has been determined, the Spousal Support Advisory Guidelines provide helpful guidance as to what amount is appropriate, and for how long. The Spousal Support Advisory Guidelines are not law, they are guidelines which must be taken into account.

There are a number of different ways in which a spousal support obligation may be satisfied, such as through monthly payments, the recipient receiving a greater share of the family property, or the payor providing the recipient a lump sum payment.

How do we decide who keeps what?

Family property and debt is presumptively equally divisible. The first step in property division is to decide what constitutes “family property,” as not everything you and your partner own falls into that definition. For example, any property that you or your partner owned before cohabitation or marriage is excluded, however, if that property becomes mixed with joint property or transferred into joint ownership, you may lose your exclusion.  Regardless, the increase in value in is considered family property. 

In some situations, if an equal division would be significantly unfair, family property may not be divided equally, and a different allocation made (i.e. a 70% / 30% split). Once the family property and debt has been determined, the parties will need to agree on who keeps what, and if there is a compensation payment payable by one to the other in order to equalize values.

If the parties cannot agree to a division, or there are insufficient funds to satisfy a compensation payment, the asset will likely be sold and the proceeds divided accordingly. This is common when the parties major or only asset is the family home.

What happens to the family pet?

Under the Family Law Act, a pet is considered property, and accordingly, the Court is unable to make orders respecting “custody” of the pet. If the parties can’t agree who keeps the pet and the issue goes before the court, the relevant factors to be considered in determining who keeps the pet are the acquisition, care and keeping. The court will look at who paid for the pet, for whom the pet was purchased, who paid the bills, and who took care of the pet.

However, it is becoming increasingly more common for parties to include provisions regarding the sharing of their pet into a Separation Agreement, as well as setting out how the expenses for the pet will be shared. As long as you and your partner agree to these arrangements, such terms can be included in a Separation Agreement or Final Order, if the Order is made by consent.

If my spouse and I agree on everything, do we need to put it in writing?

While parties can informally reach a verbal agreement about matters arising from separation, it is strongly recommended that those terms are put into writing in the form of a Separation Agreement. If you don’t record the agreement in writing, and your partner refuses to follow your agreement later on, there is very limited recourse to enforce the terms. Doing so could result in significant legal fees. Even if the agreement is in writing, but not a formal Separation Agreement, problems could arise if your partner disputes it.

For these reasons, it’s very important that the terms of an agreement be included in a properly drafted, formal Separation Agreement. There are certain terms that are included in a Separation Agreement to ensure that it is binding and will be upheld. The overarching concern is that the Agreement is fair. Even if you and your partner are on friendly terms, a Separation Agreement will provide clarity, and helps reduce the potential for conflict or arguments in the future.

Once we have a Final Order or Separation Agreement, can it ever be changed?

If both parties agree, certain terms in a Final Order or Separation Agreement can be changed, either by a variation Order or amended agreement. If there are clauses respecting spousal support, child support or parenting arrangements, it is likely that the Agreement will be varied sometime in the future to account for changes to a party’s or child’s circumstances.

However, unless the parties agree or there is a provision in the Agreement specifically providing for a review, a party wishing to change an Agreement must show that there has been a material change of circumstance since the Agreement was made; that is, a change that was not contemplated at the time of the Agreement.

Thus, it is important that if there is a desire to review a certain arrangement in the future (i.e. spousal support), that the Final Order or Separation Agreement specifically sets out under what circumstances, or when, that review is to take place.