Divorce and the new BC Family Law Act
Knowing the Choices to determine your Best Choices
In March 2013, the new Family Law Act (“FLA”) was proclaimed in British Columbia – the biggest change in BC family law legislation in over 30 years, since the 1979 Family Relations Act (“FRA”).
British Columbia's new Provincial 2013 FLA replaced the FRA but of course could not make any change to the federal Divorce Act thus an application for divorce and any corollary relief (eg support or custody or access) can still occur in the Supreme Court in accordance with and under the authority of the federal Divorce Act.
The new Provincial FLA changed the legal parenting relationship between adults and children in British Columbia from the three FRA categories of guardianship, custody and access to just Guardianship with Parenting Time, or Contact if the adult is not a Guardian. Obviously this major change, in both the labels used and new definitions of parenting “responsibilities” instead of rights, creates some confusion since the provincial FLA no longer uses the words or categories of Custody and Access but the federal Divorce Act still uses Custody & Access – the Divorce Act never did appoint Guardianship like the FRA let alone now allocate the new FLA guardianship responsibilities.
Since Canada is a federation created by the British North America Act in 1867 (BNA 1867), Canada is divided legally as well as geographically into different legal jurisdictions called Provinces (and federal territories) to address “local” interests and concerns, but also with an overlapping Federal legal (or virtual to use a current vernacular) jurisdiction to provide a national authority over national interests and concerns.
The 1867 BNA states the legal powers of the different jurisdictions and thus we have a division of legal responsibilities; for example, the Provinces have authority over family property law and the Federal government has authority over Divorce.
Thus the Divorce Act is a federal Act of Parliament while the 2013 Family Law Act (“FLA”) is a provincial Act of the British Columbia legislature. By the law of paramountcy, the federal Divorce Act is a higher authority over the provincial FLA should a conflict arise between the provincial law and the federal law on the same issue; but the Provinces have exclusive jurisdiction over the subjects within their authority as listed in the 1867 BNA.
Note – if the authority or jurisdiction is not specified eg an issue has been addressed in a court order or agreement that could be within either the Federal or Provincial jurisdiction but neither jurisdiction is specified in the document then the higher Federal law usually applies.
These jurisdiction differences matter to you because case law now indicates that mistakes have been made when drafting orders or agreements on family issues. If you want proper drafting of legal orders and agreements, then you need to discuss all your issues and long term possibilities with a family lawyer.
Since the Provincial Court must apply the provincial FLA instead of the federal Divorce Act, usually you cannot apply to the Provincial Court to change an old order made in the higher Supreme Court which implies or states that the Divorce Act applied instead of the FLA. Further, you might not be able to have the Provincial Court vary your Separation Agreement if the jurisdiction of the Divorce Act and or the higher Supreme Court is implied even if not explicitly stated.
It is our experience that most people cannot afford the expense of traditional litigation in the Supreme Court versus the easier to use Provincial Court, and it is our experience that most family matters involving children can involve court for years to resolve further disputes eg changes to support orders and or parenting time. The Provincial Court is designed to work without lawyers if you cannot afford one but you still need legal advice BEFORE attending court because the court will ask you to make choices and you need to know both your choices and the consequences of each choice.
Please note that we can provide pay as you go legal advice where you can just come in for an hour of advice instead of having a lawyer attend court for you; and we accept legal aid referrals if you are eligible.
We often find it beneficial to our clients to draft their Separation Agreement to say that the FLA applies to all issues involving children, and beneficial to have Orders involving children made in the Provincial Court – so our client has the benefit and choice of being able to apply to the less expensive Provincial Court for a change to an Order, with legal advice from us to help our clients make good choices. Contact us 24/7 at 778-728-0208; [email protected]
Sea to Sky Law has multiple lawyers with different levels of experience to help with all budgets. The author Andrew Liggett has been practicing family law since 1991. Make an appointment today – we can help.
Remember, articles like this are not legal advice – they are only general information. Legal advice is only when a lawyer provides an opinion on your personal circumstances.