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Separating and Divorcing in British Columbia
Divorcing or separating can be a stressful and emotional time. In order to separate in British Columbia, couples who are legally married must file for a divorce under the federal Divorce Act legislation. If you are in a common law union, you may separate from your partner under British Columbia’s Family Law Act .
Divorcing in British Columbia
If you and your spouse want to file for legal divorce in British Columbia you must live separate and apart for at least one year. Although some couples resolve their divorce issues without a lawyer, others engage in litigation that adds to the emotional and financial costs of divorce. Our firm has experience in meeting the needs of our clients between the two ends of this spectrum.
You can start for a claim for divorce under the Divorce Act in the Supreme Court of British Columbia. In BC, you must seek property division under the Family Law Act in the BC Supreme Court as only the BC Supreme Court can make orders that affect property and debt in this province. Under the Family Law Act a person has two years from the date they separated or obtained a divorce order to apply for property division. A person who is legally married may seek child and spousal support and parenting arrangements under either the Divorce Act or the Family Law Act. While much of the federal and provincial family legislation overlaps there are key differences. Our lawyers have the experience and knowledge required to help you navigate this legal landscape.
Separating in British Columbia
If you have been in a common law relationship for over two years, your separation is governed by the BC’s Family Law Act. If you are unsure if you are in a common law relationship or if you have obligations, the Family Law Act defines who is a “spouse” and what their obligations are. The Family Law Act, defines a “spouse” in this way:
3 (1)A person is a spouse for the purposes of this Act if the person
(a)is married to another person, or
(b)has lived with another person in a marriage-like relationship, and
(i)has done so for a continuous period of at least 2 years, or
(ii)except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.
(2)A spouse includes a former spouse.
(3)A relationship between spouses begins on the earlier of the following(a)the date on which they began to live together in a marriage-like relationship;(b)the date of their marriage.
(4)For the purposes of this Act,(a)spouses may be separated despite continuing to live in the same residence, and(b)the court may consider, as evidence of separation,
(i)communication, by one spouse to the other spouse, of an intention to separate permanently, and
(ii)an action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently.
Under the Family Law Act, there are important time limits in applying for division of property and child and spousal support if you are divorcing or separating. The time limits in the Family Law Act, are set out in Section 198. Under the act, if you are divorcing and separating and want to apply to divide your assets and debts or spousal support, you must make an application for division of property and debt within two years after the date you separated or received your divorce order. There is not a limit to claim child support as our BC Court of Appeal has consistently confirmed that child support is a right of the child and not of the parent. In Johnston v. Embree, 2013 BCCA 74, Mr. Justice Neilson held:
In reaching that agreement, it appears the parties may have lost sight of three fundamental principles: first, child support is the right of the child, not the parents; second, the child is entitled to support in the amount stipulated by the Guidelines; and third, the court is charged with ensuring a child’s right to Guideline support is enforced. Parents are thus constrained in reaching a settlement for child support that does not meet the Guideline amount: Richardson v. Richardson, 1987 CanLII 58 (SCC),  1 S.C.R. 857 at 869; L.S. v. E.P., 1999 BCCA 393 (CanLII) at paras. 58-59, 64, 67 B.C.L.R. (3d) 254, leave to appeal ref’d  S.C.C.A. No. 444.
While there are no explicit limits for claiming for child support, legal authorities in BC also establish that a parent must apply for child support within a reasonable amount of time.
Desk Order Divorce
If you our your spouse have none or have resolved all issues of property division, child and spousal support, it is possible to apply for a Desk Order Divorce without having to appear in court.
Why Richter Trial Lawyers?
If you are divorcing or separating, our lawyers have the experience and the knowledge to guide you through every aspect. Don’t go it alone, contact us and start your consultation today.