Family law in British Columbia is a complex area of law that deals with family-related issues such as marriage, divorce, child custody, child support, spousal support, and property division. Unfortunately, there are many family law misconceptions that can lead to confusion, frustration, and even legal issues.
In this post, we will discuss some of the most common misconceptions about family law in British Columbia and provide accurate information to help you better understand your legal rights and obligations. We’ll also provide further information about some of these misconceptions, from other posts from the Legal Wire Blog.
Misconception #1: Common-law partners have the same legal rights as married couples.
First on our list of family law misconceptions: when it comes to common-law relationships, many people believe that they are the same as being married in the eyes of the law. However, this is not entirely accurate. While common-law partners do have certain legal rights, they do not have the same rights as married couples in British Columbia.
One of the most significant differences between common-law relationships and marriages is the legal status of the relationship. In British Columbia, a common-law relationship is defined as a relationship in which two people have lived together in a marriage-like relationship for at least two years, or for less than two years if they have a child together. However, even if a couple meets this definition of a common-law relationship, they still do not have the same legal rights as married couples.
For example, common-law partners do not have an automatic right to spousal support if they separate. In contrast, if married couples separate, either spouse may be entitled to spousal support if they can demonstrate that they are financially dependent on their spouse. This is because marriage creates a legal obligation for spouses to support each other financially.
Similarly, common-law partners do not have an automatic right to an equal division of property if they separate. In contrast, married couples are entitled to an equal division of property under British Columbia’s Family Law Act, regardless of whose name the property is in or who paid for it. However, common-law partners can still make a claim for division of property if they can demonstrate that they made significant contributions to the acquisition or improvement of property during the relationship.
It’s also worth noting that common-law partners do not have the same legal protections as married couples in the event of the death of one partner. For example, if a married person dies without a will, their spouse will automatically inherit a portion of their estate. In contrast, if a common-law partner dies without a will, their partner may not inherit anything unless they can demonstrate that they were financially dependent on their partner.
Misconception #2: Mothers always get custody of the children.
Of all the family law misconceptions, this one is a persistent one, but it is not accurate in British Columbia. In fact, custody and access decisions are made based on the best interests of the child, rather than the gender of the parent. Both parents have an equal right to custody and access to their children, and the courts will consider a range of factors when making custody and access decisions.
One of the most important factors that the courts consider when making custody and access decisions is the child’s best interests. This includes factors such as the child’s age, their relationship with each parent, and each parent’s ability to care for the child. In some cases, the courts may also consider the child’s preference if they are old enough to express their views.
In British Columbia, there are two types of custody: joint custody and sole custody. Joint custody means that both parents have an equal say in making major decisions about the child’s upbringing, such as where they go to school or what religion they practice. Sole custody means that one parent has the right to make these decisions without consulting the other parent.
It’s important to note that even if one parent is granted sole custody, the other parent still has the right to access and visitation with the child. Access can be granted in a variety of ways, such as through scheduled visits or shared holidays. The courts may also order supervised access if there are concerns about the safety or well-being of the child.
Another factor that the courts consider when making custody and access decisions is the history of each parent’s involvement in the child’s life. For example, if one parent has been the primary caregiver for the child, the courts may be more likely to grant that parent custody or significant access. However, this is not always the case, and the courts will make decisions based on the best interests of the child.
It’s also worth noting that custody and access arrangements can be modified if circumstances change. For example, if one parent’s work schedule changes, it may be necessary to adjust the custody and access arrangements to accommodate this. In some cases, parents may be able to reach an agreement about custody and access without going to court. However, if the parents are unable to reach an agreement, the courts will make a decision based on the best interests of the child.
For more information on this family law misconception, check out our other article, Do Mothers Have More Rights Than Fathers in Canada?
Misconception #3: Child support ends when the child turns 18.
Child support is one of the most important issues in family law cases involving children. One common misconception is that child support ends when the child turns 18. However, this is not necessarily true in British Columbia. Child support can continue beyond the age of 18 in certain circumstances, and parents should be aware of their rights and obligations with respect to child support.
Under the Family Law Act in British Columbia, parents have a legal obligation to provide financial support for their children. This obligation continues until the child turns 19, or until they finish their first post-secondary degree or diploma, whichever comes first. However, there are some exceptions to this rule.
For example, if a child has a disability that makes them unable to support themselves, child support may continue indefinitely. This is because the courts recognize that children with disabilities may require ongoing financial support from their parents.
Similarly, if a child is over the age of 19 but is still attending school or training full-time, they may be entitled to continued financial support from their parents. In this case, child support may continue until the child finishes their education or training.
It’s important to note that child support does not automatically end when a child reaches the age of 19 or finishes their education or training. Parents must apply to the court to terminate child support, and the court will make a decision based on the individual circumstances of the case.
It’s also worth noting that child support payments may be adjusted over time as the child’s needs and the parents’ financial circumstances change. For example, if the paying parent experiences a significant change in income, they may be able to apply to the court to have their child support payments reduced. Similarly, if the child’s needs change, the receiving parent may be able to apply to the court to have child support payments increased.
Misconception #4: Property is always divided equally in a divorce.
Dividing property is often one of the most contentious issues in a divorce. Many people believe that property is always divided equally in a divorce, but this is not necessarily true in British Columbia. In fact, the division of property is based on a number of factors and is determined on a case-by-case basis.
Under British Columbia’s Family Law Act, property acquired during a marriage is generally considered family property and is subject to division upon separation. This includes assets such as the family home, vehicles, bank accounts, and investments. However, the division of property is not always equal.
The courts in British Columbia consider a number of factors when dividing property, including the length of the marriage, the contributions of each spouse to the marriage, and the financial circumstances of each spouse. For example, if one spouse contributed significantly more to the acquisition of family property, they may be entitled to a larger share of that property upon separation.
Similarly, if one spouse was the primary caregiver for the children during the marriage and was unable to work as a result, they may be entitled to a larger share of the family property. The courts may also take into account the age and health of each spouse, their earning potential, and their financial needs when making a decision about the division of property.
In some cases, spouses may be able to reach an agreement about the division of property without going to court. This can be done through negotiation or mediation with the assistance of a family law lawyer. However, if spouses are unable to reach an agreement, the courts will make a decision based on the factors outlined in the Family Law Act.
It’s worth noting that certain types of property are not subject to division upon separation. For example, property that one spouse owned before the marriage may not be considered family property and may not be subject to division. Similarly, gifts or inheritances received by one spouse during the marriage may also be exempt from division.
Learn more about family law misconceptions from our other article, The Ins & Outs of Property Division in British Columbia Divorces.
Misconception #5: Spousal support is only awarded to women.
Rounding out our list of family law misconceptions, we’re debunking this myth about spousal support. Spousal support, also known as alimony, is a payment made by one spouse to the other after separation or divorce to assist with their financial needs. One common misconception is that spousal support is only awarded to women, but this is not the case in British Columbia. Spousal support can be awarded to either spouse, regardless of their gender.
The purpose of spousal support is to provide financial assistance to a spouse who is in a weaker financial position as a result of the separation or divorce. The amount and duration of spousal support is determined on a case-by-case basis and depends on a number of factors, including the length of the marriage, the income and earning potential of each spouse, and the standard of living during the marriage.
In British Columbia, the courts consider a number of factors when determining whether spousal support should be awarded, including:
- The financial means and needs of each spouse;
- The length of the marriage or cohabitation;
- The roles of each spouse during the marriage or cohabitation, including any sacrifices made by one spouse for the benefit of the other;
- The age and health of each spouse;
- The earning capacity of each spouse, including any education or training necessary to increase their earning potential; and
- Any other relevant factors, such as the care of children or the division of property.
It’s important to know that spousal support is not automatically awarded in every case. The court will consider all of the relevant factors before making a decision about whether spousal support should be awarded and, if so, the amount and duration of the support.
In addition, spousal support is not necessarily permanent. The length of the support may be for a fixed period of time, such as a few years, or it may be ongoing, depending on the circumstances of the case. Spousal support may also be varied or terminated if there is a significant change in the financial circumstances of either spouse.
You can check out our article What is Spousal Support for more information about this topic.
Contact a Family Lawyer in BC
We know that family law can be confusing and complicated. By understanding these misconceptions and seeking the advice of a qualified family law lawyer, you can better protect your legal rights and navigate the family law system with confidence. You also won’t have to worry about the more intricate issues and rules in family law.
Get in touch with the family law team here at Dhanu Dhaliwal Law Group today. We’ll help you resolve your legal issues in a way that works for you and the best interests of your family.
