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Simply put, divorce is the legal process of ending a marriage. Divorces may either be uncontested or contested. If married spouses can settle all matrimonial disputes out of court, then an application can be made in BC Supreme Court for an order to have the marriage dissolved. On the other hand, a contested divorce is where married spouses are unable to resolve all their matters, such as Property and Debt Division; Spousal Support; Child Support; and Child Custody issues. The court must be satisfied that reasonable arrangements have been made for the support of the children of the marriage prior to granting a divorce. Divorce proceedings only apply to spouses that are married.

There is only one ground for divorce: the breakdown of the marriage. Under the Divorce Act, there are essentially three ways to prove the breakdown of the marriage:

• Separation for at least one year,
• Adultery of one spouse, or
• Physical or mental cruelty by one spouse to the other.

If your marriage has suffered an irreparable breakdown, we are here to assist you in obtaining a divorce.

Agreements

There are three distinct types of family law agreements: 

1. Agreements made at the beginning of a relationship (marriage and cohabitation
   agreements);
2. Agreements made when a relationship ends (separation agreements); and
3. Agreements made during a relationship or when parties resume a relationship (other
   forms of cohabitation or marriage agreements).

 

Marriage and Cohabitation Agreements

In British Columbia, “cohabiting spouses” refers to unmarried couples who have lived together in a “marriage-like relationship” for two years or more (also known as “common-law partners”). This grants them the same rights and obligations as married couples under the law. Marriage agreements for married spouses and cohabitation agreements for unmarried partners are legal contracts that help couples define their financial and property rights both during their relationship and in the event of separation. These agreements provide clarity, protection, and help prevent conflicts.

Separation Agreements

A separation agreement is a legally binding contract between two spouses (either married or unmarried) who are separating. Separation agreements provide an efficient method to address family law matters following the end of a relationship. These agreements can address a range of issues, including:

• Spousal Support
• Child Support
• Parenting Time and Custody
• Property Division, etc.

Spousal Support

Spousal support in British Columbia is financial assistance provided by one spouse to the other following separation or divorce. Its purpose is to aid the lower-earning spouse in achieving financial independence and to acknowledge any economic disadvantages resulting from the relationship. Courts evaluate three primary factors when deciding whether support should be granted:

1. Compensatory Support: To compensate a spouse for sacrifices made during the relationship. An example being that one spouse gave up education or career advancement to raise children.
2. Non-Compensatory (Needs-Based) Support: To assist a spouse who cannot meet their financial needs after separation. This type of support is typical in scenarios where a spouse cannot be self-sufficient due to age, health, or long-term unemployment; where there is a significant drop in the standard of living after separation; or where the lower-income spouse relied financially on the other for most of the relationship.
3. Contractual Support: This is where the spouses have a marriage or cohabitation agreement that gives rise to support being paid upon the termination of the relationship.

Once eligibility for spousal support has been established, the next step is to determine the amount and duration of the support. In British Columbia, the amount and duration of spousal support depend on several factors, including income levels, length of the relationship, and whether children are involved. Courts typically use the Spousal Support Advisory Guidelines (SSAG) to determine a range for payments.

Child Support

The prevailing principle in Family Law is the “best interest of the child”. Courts won’t grant a divorce if there are children involved unless proper support arrangements for them are made. Child support is the child’s right, not the spouses’.

Generally speaking, an individual will be required to pay child support if the child resides with the other parent more than 60% of the time, or if the spouses share in the care of the child, then the higher income earning parent will be required to pay child support which is calculated based on the offsetting of their respective incomes.

There are two components to child support:

1. Basic Table Amount: the basic table amount is calculated by considering the income of the parents and referring to the tables set out in the Federal Child Support Guidelines.
2. Special/Extraordinary Expenses (Section 7 expenses): These costs exceed basic child support and are shared based on the parents’ incomes. They must be necessary for the child’s best interests and reasonable given the parents’ financial situations. Typically shared in proportion to each parent’s income, but parents can agree differently. Examples include:

• Child Care Costs
• Medical and Dental Expenses
• Educational Expenses
• Post-Secondary Education
• Extracurricular Activities, etc.

Parenting Time and Custody

Child custody and parenting time are significant matters. In terms of parenting arrangements, the child’s best interest is the primary consideration. The child’s emotional and physical needs are prioritized over the parents’ interests. Various parenting arrangements may be evaluated to ensure they meet the criteria of the child’s best interest:

Shared Parenting:

In British Columbia, shared parenting indicates that each parent spends at least 40% or more of their time with the children. Under this arrangement, both parents are generally regarded as equal guardians, requiring that parenting decisions be discussed and mutually agreed upon. The relocation of the child becomes significantly more challenging for the parent wishing to relocate. Under this arrangement, child support is only paid if one parent’s income exceeds the other’s, after offsetting their respective incomes.

Primary Residence:

In this type of parenting arrangement, a child resides with one parent while the other parent is granted scheduled parenting time. The primary caregiver is authorized to make day-to-day decisions concerning the child. It is important to carefully consider child support implications before agreeing to this arrangement. Specifically, if one parent has custody of the child for more than 60% of the time, that parent’s income will not be factored into the child support calculations. Consequently, the parent who has custody for less than 40% of the time will be required to pay full child support based on their entire income.

Property Division

In British Columbia, property division upon divorce or separation follows the principle of equal division of family property, with exceptions and adjustments based on specific circumstances.

The first step in property division is determining what property is subject to division. There are essentially two categories to focus on:

Family Property: This includes most assets acquired during the marriage or cohabitation, including the family home, vehicles, bank accounts, pensions, and other investments.

Excluded Property: Certain property is excluded from division, such as:

• Property acquired before the relationship began.

• Gifts or inheritances received by one spouse during the marriage (unless the
  property was used for family purposes).

• Property that one spouse had in their name before the relationship, as long as it
  wasn’t turned into family property through joint use or significant contributions.