Frequently Asked Questions
1. How can I obtain custody and/or access to my child?
The Factors that the court will consider on the custody application:
- The best interest of the child
- A child should have as much contact with each parent as is consistent with the best interest of the child
- The court may not consider the past conduct of a parent unless the conduct is relevant to the ability to care for the child.
- Access is the right of the child, not the parent.
- Access involves maintaining a meaningful relationship between parent and child, not merely visitation.
Note* In BC we no longer use the term custody and access, instead we use parenting arrangement or parental responsibility and parenting time.
2. Spousal Support
a) Do I qualify to receive spousal support?
Yes, if you satisfy one of the following:
- If you are Married, or
- Unmarried spouses who lived together in a marriage – like relationship for at least 2 years; or
- Unmarried spouses who lived together in a marriage – like relationship for less than 2 years but who have a child together- however, if your case falls under the last category then you are only entitled to claim spousal support and not the property division.
b) What is the timeline that I have to keep in mind before applying for Spousal support?
If you are applying under the Divorce Act, there is no limitation period for bringing a claim for spousal support.
Under the Family Law Act, a spouse must bring a claim for spousal support:
- within 2 years of Divorce, if married spouses.
- within 2 years of Separation, if unmarried spouses.
3. How long will the separation process take?
In BC, if you are married, you must be separated for more than 1 year to file for Divorce. (however, during that one-year period if you resume cohabitation for purpose of attempting reconciliation for more than 90 days then you need to start the 1-year period afresh).
In order to separate, one spouse must simply advise the other spouse that he/or she wants to end the relationship permanently.
4. How will we split our assets?
Under the Family Law Act there is a presumption of equal division of family property and family debt between spouses.
What is Family property – all real and personal property that:
- either or both of the spouses owned on the date of separation; or
- was acquired by a spouse after the date of separation but derived from family property;
- increase in value of excluded property that occurred during the spousal relationship;
- money in an account at a financial institution; Pensions and RRSPs,
- share or interest in a business/corporation;
5. What will happen to our matrimonial home?
Under the Family Law Act there is a presumption of equal division of family property (matrimonial home)
However, Court may divide family property unequally if it would be “significantly unfair” Court will consider the following:
- the length of the marriage between the spouses;
- the terms of any agreement between the spouses;
- a spouse’s contribution to the career or career potential of the other spouse;
- whether family debt was incurred in the normal course of the relationship and to maintain the family;
6. What are the benefits of hiring a family lawyer?
You don’t need to hire a family lawyer. Most people represent themselves in a family law matter, however, when things go out of hand, they don’t know what to do. In order to avoid those situations that caused more harm than good you must have legal representation. As lawyers are trained and can help you find a timely resolution.
7. How does divorce work in BC?
Grounds for divorce is marriage breakdown, which can be established by proof of one of the following:
- Separation for more than 1 year or adultery or physical or mental cruelty.
If you are married and want to end your relationship, then you can apply to Supreme Court to get an order for Divorce, if there are children of the marriage, court will need to be satisfied for reasonable arrangement for child support have been made.
8. What does child custody mean?
In BC the word custody is no longer used instead of custody we use parental responsibilities or parenting arrangements, and parenting time. During the parenting time the guardian has the responsibility to make day -to -day decisions regarding the child subject to a court order or agreement between the parties.
9. How is child support determined?
The child support is payable and by whom is determined using the Child support guidelines.
- Determine the number of eligible children
- Determine the gross income of both parents
10. What’s a separation agreement?
When both the parties mutually agree that they want to end the relationship they can draft an agreement that will cover all the points pertaining to child support, spousal support, property division and how all the assets and debts will be divided between both the parties. How the rights of the children will be protected, how much parenting time and parenting responsibilities each parent will have, who will keep the family home etc.. This will save you a trip to the court and the lengthy litigation process. We can draft a separation agreement for you by securing your rights and providing you proper legal advice.
11. How is spousal support determined?
Spousal support is determined using the Spousal support advisory guidelines.
The court will consider the means, needs and other circumstances of each spouse, including:
a) the length of time the spouses cohabited;
b) the functions performed by each spouse during cohabitation;
c) any order, agreement or arrangement re-support of the spouse.
12. Can my spouse and I both hire the same lawyer?
In case of Divorce by consent, you can hire the same lawyer, but in case of conflict the lawyer cannot continue to act for both of you.
13. It’s hard choosing a lawyer, what should I be looking for?
Good listener, patient and trustworthy if you find these in a lawyer – GO for it.