11.2 - Family Law Issues

If a Committed Relationship Ends

Couples whose  relationship ends, regardless of whether the relationship was a marriage or a common-law relationship, will need to work out some details.  The law allows couples to work out their own arrangements with or without legal support, or they may go to court to have a judge decide.  There are four key areas of decisions that separated couples must make.  These decisions include determining where any children will live, calculating child support (if any), dividing the couple’s assets (things that they own that have value), and calculating spousal support (if any).  This section will examine these topics and other family law items.

Guardianship of a Child

The legal guardian of a child is someone that has some responsibility for the care and upbringing of the child.  Parents of a child are automatically guardians of that child.  However, it should be noted that guardianship as parents of a child is not always perpetual.  It is possible for a parent to be either added or removed as a guardian via agreement or court order.  Also, a parent who has never lived with a child would not automatically have guardianship; but could be awarded guardianship through either an agreement with the other parent or a court order.  Parents are not the only people that may be a child’s guardian.

It is possible for people other than parents to become guardians of a child.  This is accomplished through agreements with a parent or a court order.  Non-parental guardians may take several forms.  One such form is a step-parent.  A step-parent is not automatically a guardian, but they may become one through agreement or court order.  Another form is a grandparent.  Grandparents also do not automatically have guardianship, but they may attain this through an agreement with parent(s) or a court order.

The final important consideration to emphasize here is that the guardianship of a child does not end after separation, unless via agreement between parents or a court order.

Decision-Making Responsibility for the Child

If a couple has children together and are both guardians of those children, then the most important elements to settle after separation are matters around decision-making responsibility and child support for the child.  The decision-making responsibility refers to the responsibility to make important decisions about a child’s well-being, including areas such as health, education, culture, religion, and extracurricular activities.  A separated couple would divide decision-making responsibilities according to parenting arrangements that are agreed upon or ordered by a court.  Parenting arrangements are specifics around how separated parents will share parental responsibilities and parenting time.  Parenting arrangements must be based on the best interests of the child.  The best interests of the child is a legal test to help determine what would best protect the child’s physical, psychological & emotional, safety, security, and overall well-being.

Parenting arrangements may take one of these four different forms:

1. sole decision-making responsibility

   • child lives only with the one parent that has sole decision-making responsibility

   • parent with sole decision-making responsibility makes all decisions regarding the child

2. joint decision-making responsibility

   • child lives mostly with one parent, but spends much time with other parent

   • both parents cooperate on decisions regarding the child

3. shared decision-making responsibility

   • child lives with each parent 40%+ of the time (as close to 50/50 as possible)

   • both parents share decision-making responsibility

4. split decision-making responsibility

   • 1+ children live with one parent, while other children live with other parent

   • parent has full decision-making responsibility for any children living with them only

   • this parenting arrangement is uncommon

It is important to recognize that parents have the right to parenting time with their children.  This, of course, is subject to any agreements between parents as well as any court orders.  Parenting time may take different forms.  The first type is called reasonable parenting time, and this is when parents are left to agree on terms of parenting time for each parent.  Defined parenting time is a second type, and it is where the court decides what the parenting time parameters are.  Finally, supervised parenting time is when the contact time by one of the parents must include the presence of a third party.  It is important to note that, although parenting time refers to the parents of a child, grandparents and other family members may also be granted contact provisions so that they may spend time with their young family members.

Child Support

If the decision-making responsibility for a child is one of the most important issues to resolve following a relationship split, then child support is almost as important.  Parents have both a legal and moral obligation to provide for the needs of their child, and child support is one method of providing for these needs.  Child support is the payment made from one spouse to another to meet financial needs of their children.  Sometimes spouses are able to agree on child support details, but often they turn to child support calculators.  Child support calculators are provided online by the Department of Justice, and are frequently used to determine child support amounts.  These amounts may go up or down from year to year, depending on the financial situation of the payer.  Child support is paid until the child reaches legal age; but may be extended up to age 25 if the child is enrolled in education full-time and still living with one parent.

Consider a couple more issues related to the children of an ended relationship.  First, children that are adopted have all the same legal rights as biological children.  Adoption is the legal process whereby a couple (or single person) becomes the legal parents of a child.  Child custody and child support issues are identical for adopted and biological children.  Second, parents have the legal responsibility to protect their children from any harm.  If there are any suspected incidents of abuse, or neglect, or abandonment, then the government may intervene, and this may have a direct effect on child custody.

Dividing Assets

The two most important issues to be resolved after a relationship ends are child decision-making responsibility and child support.  Next, couples must determine how to divide up their family assets (net of debts).  Assets are things of value that are owned.  Couples divide all net family assets that have been collected during their relationship 50/50.  This means that all assets collected during the relationship are added up, all debts incurred during the relationship are added up, and then the total debts are subtracted from the total assets to arrive at a net assets number.  This net assets number is divided in half, and this is the value of assets that each spouse will receive.  It is not necessary to sell cars, houses, businesses, etc. to then divide the cash.  Instead, each spouse may take certain assets that add up to the total value that they should receive.  Again, as with legal issues around children, couples are free to calculate their own asset division; but the court may be called upon to make these decisions if the couple can’t agree.

Spousal Support

The final issue to resolve after a relationship split is spousal support.  Spousal support is the money that one spouse pays to the more financially dependent spouse once the relationship has ended.  During a committed relationship, spouses are obligated to one another to support each other financially.  If the relationship ends, this financial support may continue, where the more financially dependent spouse receives spousal support payments from the other spouse.

The amount of the spousal support payment is calculated using information like the financial need of one spouse, the ability of the other spouse to pay, the length of the relationship, the role of each spouse, and any existing agreements.  Once calculated, spousal support is paid to the financially dependent spouse until they reach self-sufficiency.  Spousal support may be required to be paid for a number of months, or even for a number of years - however long it takes for the financially dependent spouse to become self-sufficient.

Enforcing Payments

Both child support and spousal support payments have a purpose.  They are both intended to remedy unfortunate circumstances following the end of a relationship.  However, sometimes the spouse ordered to pay child support and/or spousal support does not pay.  When this happens, the B.C. Family Maintenance Enforcement Program is a government resource intended to help collect money from ordered payers, and to get the money to the ordered payees.

Summary

Family law can be a very emotionally charged area of law.  However, it is a vital area of law, intended to help resolve disputes between former spouses, and to protect the welfare of any children of the  relationship.  This section outlined the general manner in which the four key areas of decisions that must be made after a relationship ends.  These decisions include decision-making responsibility for child, child support, asset division, and spousal support.