Frequently asked questions about the new BC Family Law Act

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The BC Family Law Act came into effect on March 18, 2013. The information in this fact sheet is based on information provided by the BC Ministry of Justice. For more information about the new legal terms (highlighted below) and the changes to the law, see the Guide to the New BC Family Law Act.

 

Issues about children

Does the new act affect issues about my children if I already have a family court case in Provincial Court?

Yes, in Provincial Court all child-related issues will be based on the new act. So, you won’t get orders for custody and access, because the new law uses different words.

Does the new act affect issues about my children if I already have a family court case in Supreme Court?

Not if you applied for orders under the federal Divorce Act in Supreme Court. In that case, nothing will change. But if you applied for orders under the provincial Family Relations Act in Supreme Court, all child-related issues will be based on the new act.

I am separated from my child’s other parent and my child lives with me full time. I don’t have a formal agreement or order. Does the new act change things for the other parent?

Under the new act, if the other parent has ever lived with the child or regularly cared for the child, they are a guardian. If the other parent has never lived with the child and doesn’t regularly care for the child, they aren’t a guardian. However, a parent who isn’t a guardian can apply to court for contact with the child.

What if I want a formal agreement or order about our informal parenting arrangements?

If you have informal parenting arrangements in place and the other parent is also a guardian, you can only change or formalize those informal arrangements by making an agreement or getting a court order.

What if the other guardian won’t agree to this?

You can apply to court for an order to formalize or change your informal parenting arrangements. For example, if you’ve had total responsibility for your child and the other parent won’t agree to put this arrangement in writing, you can apply to court for an order to limit the other parent’s parenting role, or even to remove guardianship from that parent if appropriate. (Only an agreement or court order can take away guardianship.)

Property and debt

Does the new act change anything about property in an existing family court case?

No, for cases that are already in the system, property division will still be based on the Family Relations Act, unless the parties agree to use the Family Law Act. The exception is pension matters, which must be based on the new act.

I already have an agreement to divide my property. It would have been done differently under the new act. Can I apply for a new order?

No. Property division issues that have been resolved either by agreement or order under the Family Relations Act cannot be re-opened just because there is a new act.

Is property divided differently if you were married or if you lived common-law?

Under the Family Law Act, couples who have lived together in a marriage-like relationship for two or more years are considered spouses and are treated the same as married couples. This is a change in the law. The Family Relations Act treated unmarried couples differently than married couples when it came to dividing property (no matter how long they had lived together).

Under the new act, spouses will generally share the family property that either of them own at the time of separation. This doesn’t include property that either person owned before the relationship (except any increase in the value of that property).

If couples don’t want the property division rules to apply to them, they can agree to opt out and divide their property as they see fit. The court has less ability to overturn these agreements.

What does the new act say about debts?

The Family Law Act says that spouses (married and those living in a marriage-like relationship for two or more years) share responsibility for family debts. Family debts are debts taken on by either spouse during the relationship.

New legal terms

What if my agreement/order that I already have uses the terms custody and access?

The agreement or order will stay in place. You don’t need a new agreement or order.

What happens if I need to change my agreement that uses those terms?

If you already have an agreement, you can decide together what terms to use in a revised agreement. You can stick with the terms you are using or use the new Family Law Act terms.

What happens if I need to change my order that uses those terms?

If your order is under the Divorce Act, you’ll continue to use the terms custody and access.

If your order is under the Family Relations Act, you’ll have to use the new terms. So, if you have custody or guardianship, you’ll be a guardian with parenting time and parental responsibilities. If you don’t have custody or guardianship but have access, you’ll have contact with a child.

My agreement or order says I have custody or guardianship. Does this change under the new act?

If your original order or agreement gave you custody or guardianship, you’re automatically a guardian of the child under the Family Law Act and you have parenting time and parental responsibilities.

My agreement or order says I have sole guardianship or sole custody. What does this mean under the new act?

Most sole guardianship agreements or orders under the Family Relations Act also say that the parent has sole custody. In this situation, you’re still the only guardian under the Family Law Act and you have parenting time and parental responsibilities. The time the other parent spends with the children is now considered contact with a child.

My agreement or order says I have sole guardianship but joint custody (or joint guardianship and sole custody). What does this mean under the new act?

In these situations, the other parent is also a guardian of the child under the Family Law Act. Your parenting arrangements won’t change. Each parent continues to have the parenting time and parental responsibilities (or restrictions) as in the original agreement or order.

Support payments

Does the Family Law Act change child support amounts?

No. The Family Law Act doesn’t change child support amounts. In BC, we use the Federal Child Support Guidelines and the child support tables for British Columbia.

Does the Family Law Act change spousal support amounts?

No. The Family Law Act doesn’t change spousal support amounts.

Source: familylaw.lss.bc.ca

Improved legal help for families at heart of new legal aid projects

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VICTORIA – Two new legal aid projects announced today at Victoria’s Justice Access Centre (JAC) are focused on providing B.C. families with the services they need to help them with their family law issues.

Attorney General and Minister of Justice, Suzanne Anton, and Tom Christensen, chair of the board for the Legal Services Society (LSS) announced the appointment of a new full-time family duty counsel at the Victoria JAC and a second project that will increase the services available through the Family LawLINE.

The new lead family duty counsel will provide people with early legal advice, in addition to supporting a variety of other services at the JAC. Clients will be able to book appointments in advance and have access to the same lawyer for a repeat visit, if necessary.

The Family LawLINE provides eligible British Columbians with legal advice and information over the telephone to better serve people in remote areas of the province who may be unable to access existing in-person services. This pilot project expands the available services up to six hours with the same lawyer for a single legal issue, where previously, people received three hours in total, with no continuity of service from the same lawyer.

These pilot projects will complement existing services that provide clients with meaningful, consistent and timely legal advice. B.C. families will be better supported to resolve their disputes early and often out of court, saving them time and money.

The projects announced today are two of a total of five justice transformation projects Government is funding through a targeted $6 million investment over the next three years. They were developed collaboratively between the Ministry of Justice and the LSS and are consistent with recommendations made in its report, Making Justice Work, the Cowper report and commitments made in the White Paper on Justice Reform: Part 2.

Justice Access Centres serve as a one-stop centre for people seeking help with family and civil problems such as separation and divorce, housing, income assistance and employment disputes.

Quotes:

Attorney General and Minister of Justice, Suzanne Anton –

“Our government recognizes the importance of supporting legal aid and is committed to innovative solutions that help families get the legal services they need. The new full time family duty counsel in Victoria and province-wide expansion of the Family LawLINE will provide British Columbians with increased access to legal advice and information. We believe that by providing families with consistent and timely legal advice and services, they will be better supported to resolve their disputes earlier and often outside of a courtroom.”

Tom Christensen, chair, Legal Services Society of B.C. –

“The new lead family duty counsel at Victoria’s JAC and the expanded Family LawLINE will improve British Columbians’ access to the legal advice and the information they need to resolve their family law disputes. LSS looks forward to working with the Ministry of Justice to assess the impact of these enhanced services on assisting low-income families dealing with family law problems as we work to improve outcomes for those families.”

Quick Facts:

  • In total, government is providing the Legal Services Society with $74.5 million in 2014/15.
  • This includes a $2 million annual increase over three years to fund the expansion of legal aid services in family and criminal law.
  • The Legal Services Society is an independent organization that operates and administers the legal aid program in B.C.
  • Individuals can apply for a legal aid lawyer in-person at a legal aid office, or over the phone.
  • Anyone with a family legal problem or question can call the Family LawLINE toll-free at 1 866 577-2525.

Parenting After Separation courses

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Parenting After Separation is a free, three-hour information session for BC parents. The course explains the effects of separation on separating parents and their children. It demonstrates effective ways to communicate and solve problems in parenting situations.

In some communities, attending a Parenting After Separation course is mandatory for separating parents. But any separating parents can choose to attend a Parenting After Separation course if they want to, even if it’s not required.

The course is also available to other family members, such as grandparents, or guardians who are dealing with parenting and support issues.

For more information, see Parenting After Separation on the Justice Education Society website or Parenting after Separation Program on the Ministry of Justice website.

Parenting After Separation and Provincial Court

In some communities, separating couples must attend Parenting After Separation sessions before they can go to court. If the course is mandatory where you live, Provincial Court registry staff will give you a referral. The course is available in many communities and can also be taken online.

Communities where Parenting After Separation is mandatory
The Parenting After Separation Program is mandatory in Provincial Courts in:

  • Abbotsford
  • Campbell River
  • Chilliwack
  • Courtenay
  • Kamloops
  • Kelowna
  • Nanaimo
  • New Westminster
  • North Vancouver
  • Penticton
  • Port Coquitlam
  • Prince George
  • Richmond
  • Surrey
  • Vancouver (Robson Square)
  • Vernon
  • Victoria

Tip: It’s a good idea to find out as soon as possible if you have to go to a Parenting After Separation course. Sometimes the waiting list to get into a course can be quite long.

When you’ve completed the course, you’ll get a certificate of attendance. You must file this with the registry before they will set a first appearance date. Both parties must attend the course on or before the first appearance date.

You can apply to postpone a mandatory Parenting After Separation course
In urgent situations, you can apply to the court to skip or postpone this step.

Some parents are exempt
You don’t have to attend this course if you:

have attended the course already within the past 24 months;
aren’t fluent in any language in which the course is offered;
live in an area where the course isn’t offered and you don’t have access to the Internet to take the online course; or
can’t attend because you have serious health problems.
If one of these situations applies to you, go to your court registry and ask for the exemption form. You can fill this out and submit instead of the certificate of attendance.

Learn more here: familylaw.lss.bc.ca

The problem of child benefits in shared custody

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What the planned changes to the federal child benefits really mean for divorced or separated parents

Opposition finance critic Lisa Raitt has raised a new concern about the planned changes to federal child benefits, namely, what happens in cases of separation or divorce? It’s actually a question that should be raised more often in social policy.

Anyone who has ever been through a separation or divorce involving children will tell you, it’s already hard enough without having to worry about the minutiae of benefits rules, tax law and previous court decisions. Anything that policy-makers can do to both make the rules simple and, more important, prioritize the best interests of children should be welcomed. Ms. Raitt is absolutely correct in asserting that the budget legislation to create the new Canada Child Benefit is mum on the question of separation and divorce. Will this silence create a host of new problems in cases of separation and divorce? That seems unlikely. The old problems will simply remain. Let me explain (with a giant disclaimer that this blog is not legal advice and you should consult with a lawyer if you need information specific to your personal case).

When you separate or divorce, there are three major instances when child benefits are likely to be an issue:

1. When government is determining to whom the federal (and coordinated provincial) benefits ought to be paid and how much the benefit should be.

2. When parents, lawyers or courts are determining whether and how much one parent must pay in child support, special and extraordinary expenses and/or spousal support to an ex-spouse.

3. When the tax agency is determining changes to child benefits if and when a single parent enters into a new common-law or legal marriage or there has been another similar material change of circumstance for the eligible children.

Sometimes ex-couples will include text in their separation agreement or court order to decide who will claim benefits like the Canada Child Benefit. The Canada Revenue Agency doesn’t care. It will follow the Income Tax Act (ITA).

Section 122.6 of the Act deals with child benefits and this is the part of the legislation the government is amending to create the new Canada Child Benefit. The standalone Universal Child Care Benefit Act is being given a sunset clause and will be folded into the new benefit so I’m not going to discuss it much.

The ITA says you are eligible for child benefits if you are a parent “who primarily fulfills the responsibility for the care and upbringing of the qualified dependant” all of the time or, in cases of shared custody, “when residing with” the eligible dependent child. The CRA has methods of checking in on parents to make sure those who claim to be “primarily responsible” really are. They do things like ask to see a court order dealing with the child’s living arrangements, a child’s report card or a letter from a family doctor attesting to which parent brings the child to medical appointments. And while it may be 2016, when it comes to deciding who is “primarily responsible” for the care of the child, “if there is a female parent who lives with the child,” CRA says, “we usually consider her to be this person.” If you show CRA that you’re sharing custody on an equal or nearly equal basis, then the agency will separately pay each parent 50 per cent of the child benefits they would otherwise receive if they were the only caregiver. None of this will change under the new Canada Child Benefit based on the draft legislation before Parliament.

What about support payments? For the sake of brevity, I’m only going to deal with cases of legal marriage where the federal Divorce Act applies. Ex-spouses may be faced with (fight about) amounts for each 1) child support, 2) special and extraordinary expenses and 3) spousal support.

On child support, the law is pretty clear: parents pay on the basis of their total income as reported on their annual tax return. The Canada Child Benefit (like the Canada Child Tax Benefit before it), won’t change that calculation because it isn’t part of taxable income. The soon-to-be-cancelled Universal Child Care Benefit needed a special exemption from the calculation because it is taxable (another example of how the new benefit will be a little simpler than the old system). The Federal Child Support Guidelines give table amounts based on the payor’s income and the number of children and the province where the family lives. In cases where paying parents have tried to ask the courts to reduce the table amount because of government benefits paid to the other parent, the courts have been pretty clear “that the income of the recipient spouse or of the child is irrelevant when determining the Guideline amount payable by the paying spouse” (see for instance Kaupp v. Kaupp, 2008 ABQB 372). In other words, if you owe child support under the federal guidelines, it doesn’t matter what your ex receives in federal benefits. Again, this will not change with the new Canada Child Benefit.

On top of basic child support, divorcing parents also need to figure out ways to share costs like medical bills, sports activities and tuition, termed “special and extraordinary expenses.” In these cases, the regulations do say that the cost is supposed to be determined after applicable credits and benefits. For example, the costs of the hockey camp to be shared should take into account the value of the Child Fitness Tax Credit claimed by one of the parents—but Budget 2016 is doing away with that credit. This leaves one less thing for divorcing couples to argue about! Spousal support is supposed to be worked out after child support and the special expenses are taken of. Child benefits are supposed to be taken into account in calculating the ability to pay of each parent for both special expense and spousal support although it seems in practice not every lawyer or judge remembers to do this. The new Canada Child Benefit won’t fix the problems with determining special expenses or spousal support but it won’t make them any worse either.

Finally, what happens in cases where a single parent remarries or becomes common-law? CRA relies on parents to keep them informed of their separations and re-partnerings. If you don’t inform CRA otherwise, they’ll keep paying you the same amount until your next annual assessment for child benefits. If you are separating and are the primary caregiver to children, it’s in your interest to tell CRA ASAP so that your monthly benefits will be based on your new (and presumably lower) net family income. But if you partner-up again, CRA also wants to know. More than one formerly single parent has had a real shock in owing child benefits back to government.

For example, a single parent with two children (ages 4 and 7) and $50,000 in net income will currently get $758.33 per month from the Canada Child Tax Benefit. If that parent remarries or becomes common-law (defined federally as 12 months of cohabitation or immediately on the birth of a child), then the new spouse’s income becomes part of the calculation of net family income. Let’s say the new spouse also has $50,000 in net income and the union takes place halfway through the year. If the custodial parent forgets to report this change in circumstance, under the Income Tax Act, he or she could owe as much as $2,010 back in federal child benefits deemed to be an “overpayment.” The new Canada Child Benefit adjusts how the repayment is calculated but it doesn’t change the basic system already in place.

In sum, child benefits do create issues in cases of separation and divorce, but these aren’t new under the Canada Child Benefit. As a feminist, I’m honestly a little torn about some of these established rules.

The policy of presuming that a female parent will be the primary caregiver to receive federal benefits goes back at least to 1920’s Mother’s Allowances programs. If the money is seen as “mummy’s income” in families, this administrative measure could factor into decisions about whether and how much to work. Because we all overvalue losses relative to gains, families may feel mom needs to earn at least twice as much as what “she” (rather than the family) will lose by working more—dad’s income is actually just as relevant but labels matter. On the other hand, it is a label that recognizes that women continue to do 50 per cent more child care than men in Canada. Because it’s 2016…

The policy of excluding child benefits from the calculation of basic child support but not from special and extraordinary expenses is frankly a little incoherent. It was a long and arduous legal battle to exclude child support payments from the taxable income of recipient parents (most often mothers) and to cancel the tax break for paying parents (most often fathers). For well-off split families who receive little or nothing in child benefits, including them or not in the calculation of parental obligations toward hockey camps or braces won’t make a big difference. But I don’t understand the rationale for saying child benefits are excluded from amounts to feed, clothe and shelter your child but are included for anything beyond that. It seems that policy treats child benefits as essential income some of the time and other times as a kind of discretionary baby bonus. In practice, researchkeeps showing that low-income parents use these child benefits in ways that really do benefit their children—not for “beer and popcorn.”

Finally, the “spouse in the house” rule that automatically reduces child benefits and demands repayment is consistent with a principle of individual assessment for taxation and family assessment for benefits. But in practice, it does disadvantage some former single-parents by reducing their child benefits on the assumption that the new spouse will be contributing all of his or her income to the welfare of the reconstituted family. However, this new spouse may have no ongoing legal obligation toward the children of the prior marriage. Also, let’s not forget that single-parent families have a median total income less than half that of couple families and rates of low-income are still far higher among single-parent families compared to other family types.

The Liberals have promised that the new Canada Child Benefit will make a meaningful dent in child poverty rates in Canada. I don’t know how much of that impact is expected among single-parent families. Regardless, the new benefit isn’t going to make getting divorced any harder than it already is.

source: macleans.ca

Can children choose which parent to live with?

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At what age do children get to decide where to live?

Many children will express a preference for one parent over another. These preferences often change over time, sometimes moment to moment, depending on who the child feels closest to. Courts may take the child’s preference into consideration when making an order on parenting time. However, the weight a Court places on the child’s preference will depend on the child’s maturity and age. There is no defined age in Alberta or in British Columbia at which children can choose where to live when their parents are separated. The preferences of a young child will probably not carry much weight, but the significance of an older child’s choice will vary. The judge will need to interpret and apply the law to the particular circumstances of each case.

The law that applies depends to some extent on where you live. For example, in Alberta, “custody and access” issues are governed by the Divorce Act (“DA”), while “parenting time” is addressed by Alberta’s Family Law Act (“FLA AB”). Similarly, in British Columbia, child “custody and access” is also under the DA, while “parenting time” is covered by British Columbia’s Family Law Act (“FLA BC”).

Notwithstanding some differences in the legislation from province to province, each of the Acts cites the “best interests of the child” as the determining criterion for decisions regarding which parent a child will live with. Under that overarching rule, the child’s views or preferences may have some weight on the Court’s decision. However, there is no set age in either of the DA, the FLA AB, or the FLA BC at which at which a child’s views will determine where the child will live – it will depend in each case on whether the child’s choice is consistent with their best interest.

According to the Alberta Court of Appeal in RM v JS, 2013 ABCA 44 (“RS v JS”), the Court will give greater weight to a child’s wishes when the child has “attained an age and degree of maturity at which it [is] appropriate to take account of [the child’s] views”. However, it is necessary to have an evidentiary basis that allows the Court to determine a child is mature enough. This could be evidence from, for example, a child psychologist or a counsellor. The Court in RM v JS further explains that “even if there [is] sufficient evidence before the court to allow the judge to consider the child’s s views, it [is] unreasonable to treat the child’s objections as controlling, and giving them inordinate weight”.

Similarly, British Columbia courts have recognized that as a child ages and matures, that child’s views should be given greater weight. While an older child’s wishes may not be determinative, in O’Connell v McIndoe, 1998 CarswellBC 2223 (BCCA), the Court held that “ in order for custody orders relating to children in their teens to be practical, they must reasonably conform with the wishes of the child” (at para 13).

Evidence regarding a child’s wishes will often be in the form of a report called a “Voice of the Child” report, where a psychologist or counsellor meets with the child and assesses what the child’s views and preferences are. This will only be conducted if the Court believes it would be appropriate to do so, as a very young child may not be able to express their wishes, or it may place a child in an uncomfortable situation. As in Alberta, while an older child’s wishes will be given greater weight in British Columbia, those wishes are not the only factor the Court will consider.

Generally, as children grow older, the Courts will rely more heavily on those children’s views. This can be a very complex area of the law and can include many other considerations such as the reasons a child gives for expressing a preference, whether that preference is genuine, and whether it is in the child’s best interests (or not) to allow them to decide where to live.

source: advocatedaily.com

Sharing post-separation income with your ex spouse

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At what point after separation do former spouses truly have economic independence from one another? Child support obligations tie parents together until the children become independent adults. That may be a lengthy period of time after separation but it is a defined period. For spousal support obligations there may be no clear end date to the obligation. Unless former spouses have agreed to release each other from future claims or have agreed to a fixed term limit for support, the obligation can continue indefinitely. That leaves open the possibility of ongoing legal expense and uncertainty. Spousal support may be adjusted to reflect changes in the former spouses’ lives such as retirement, job loss, remarriage or ill health. There is a lack of clarity in how and when spousal support should be adjusted in the years after the initial settlement. One of the most contentious questions is whether a support payor is required to share increases in income which occur after the separation.

Spousal support is justified in one of three ways: (i) the couple agreed to spousal support, perhaps by a marriage contract; (ii) one of the spouses was disadvantaged economically by the relationship and has a right to compensation; or (iii) one of the spouses is in need. The amount of spousal support should reflect the couple’s lifestyle during their relationship and is directly related to the payor spouse’s income at the time of the separation. What if a support payor’s income increases substantially in the years after separation? Does the support recipient have a right to come back and ask for more? The answer is not at all clear. Courts have not dealt consistently with these cases. The uncertainty in this area promotes conflict and litigation.

The argument in favour of allowing a support recipient to share in the payor’s good fortune post – separation is that in some respect that success relates to the other spouse’s contribution during the marriage. That may be because the payor spouse acquired professional qualifications, started a business, or started to climb the corporate ladder during the marriage which led to financial success later. On the other hand, post-separation success may be largely attributable to the hard work and creativity of the payor spouse. Others, such as a new spouse, adult child or business partner may have contributed to the post-separation success. The idea that spouses acquire a property interest in each other’s careers has long since been rejected by Ontario courts, yet sharing post separation income increases looks a lot like sharing ownership of a career.

Courts are more likely to order a payor spouse to share increased income if it is earned in the same business in which the spouse worked during the relationship. Also, an increase in income close in time to the separation is more likely to be shared than when the increase comes many years later. Some courts require very specific contributions to the ultimate benefit, such as paying for a spouse’s professional education. Other courts have accepted typical domestic services such as caring for children or the household as being sufficient to entitle a spouse to increased post-separation income.

The uncertainty as to whether or not post-separation increases in income will have to be shared with a former spouse can generate conflict and litigation. This possibility is yet another good reason why it is advantageous to negotiate a lump sum payment of spousal support with a release or, at least, a time limit on support payments to mitigate this risk.

source: www.advocatedaily.com