Separation and Divorce Basics in BC
BC Family Law Act
In British Columbia, the Family Law Act is the governing family law statute. It puts the safety and best interests of the child first, encourages families to resolve their disputes outside court, clarifies parental responsibilities and the division of assets when couples separate, addresses family violence, and provides a framework to determine legal parentage.
Divorce Act
The Divorce Act is federal law that applies to all of Canada. It only applies to married or previously married couples. Any family law issues for unmarried couples are dealt with under the Family Law Act.
How to Get Divorced?
To be granted a divorce, at least one spouse must show that they have lived in the province for at least one year and the marriage has broken down. Breakdown of a marriage can occur in one of three ways:
1. The spouses have been separated for at least one year with no chance of getting back together
2. A spouse has committed adultery
3. Either spouse treats the other cruelly
What is “separated for at least one year”
In reference to #1, a married couple or a couple living in a marriage-like relationship (often referred to as common law) are considered separated when at least one of them decides to separate and stop living together. This typically involves one person moving out of the residence, but this is not always the case. Couples can be considered separated even if they are living in the same residence. Some indicators of separation may include sleeping in different beds, not eating meals together, and not attending social events together, for example. It is very important to make the date of separation clear because the separation date is used to determine the value of assets and debts owned by the parties for the purposes of property division.
Do we have to go to court?
Most separating spouses can come to agreements about key issues without requiring a trial or court time. Mediation, lawyer-led negotiation, and collaborative family law processes are services available to help separating parties reach an agreement. A trial is typically an expensive and stressful process that tends to increase conflict between separating spouses. It can also have negative impacts on the children and other family members and is a last resort, when all other attempts at resolving the dispute have failed.
Child Support Basics
Child support is the right of the child to receive and cannot be waived by separating parents. It is calculated in accordance with the Federal Child Support Guidelines, and the amount payable depends on the income of the parents, the number of children to be supported, and the amount of time each parent spends with the children. If a parent has less than 40% of parenting time with a child, their income will solely be used to calculate the basic child support payable, and they will generally be required to pay child support to the other parent. If the parties share parenting time on an equal basis, both parents’ income will be used to calculate the amount of child support owing and their respective support obligations will be offset against one another, with the parent who earns a higher income paying the balance to the parent who earns a the lower income.
Spousal Support Basics
Spousal support is calculated in accordance with the Spousal Support Advisory Guidelines and, unlike child support, is negotiable. A former spouse must first establish an entitlement to spousal support. There are three types of spousal support entitlements:
· Contractual - typically arising from a previous agreement between spouses, such as a prenuptial or cohabitation agreement;
· Compensatory - typically arising where a spouse limits their work outside the home to raise a family;
· Non-compensatory, also known as needs-based - arising where a spouse has disabilities or other factors that may prevent them from earning an income, such as a lengthy period outside of the workforce to raise children. In this regard, often spouses will be entitled to spousal support on compensatory and non-compensatory grounds
Once a spouse establishes an entitlement to spousal support on any of these grounds, the amount owing and the duration it will be payable for is determined based on a number of factors, including the length of the marriage, the income of each spouse, whether there are children in the relationship, and more. The amount of spousal support and the duration of it is heavily dependent on the personal circumstances of each couple.
We highly recommend speaking with an experienced family lawyer to help you navigate the process and to make sure your separation and divorce are completed fairly and efficiently.
A lot of people assume that involving a lawyer will result in a high-conflict court battle. That isn’t the case! We know that sometimes the family dispute is high-conflict due to the nature of the dispute, or the other person (people) involved, but our lawyers are always thrilled to help people document their agreements that they have reached on friendly terms. We will make sure you know your rights and entitlements, identify any issues for you to consider, and then help you formalize your agreement so that you can move on with your life.
Contact Us
Contact our office for professional guidance tailored to your specific situation.
Written by Amelia Cline, Albert & Co. Law LLP, February 12, 2025.
© Albert & Co. Law LLP. The contents of this article do not constitute legal advice. Readers should seek legal advice in relation to their own specific circumstances.