FLA and DA basics Flashcards by Led Mat

Applies to only married couples

Divorce Act

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Applies to common law relationships

FLA

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90 day reconciliation

amount of time allowed for people seeking divorce to have reconciled ; if goes beyond 90 days the clock starts over

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Grounds for divorce

adultery, mental cruelty, separated for 1 year

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PC Family Law matters

guardianship, parenting arrangements, contact, child and spousal support, protection and conduct orders

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Assets and debts, pension and property

issues dealt by SC, out of scope for FJC assistance

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FMEA

Family Maintenance Enforcement ACT

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FMEP

Family Maintenance Enforcement Program

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ISO

Interjurisdictional Support Orders Act

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Hague Convention

reciprocity btwn countries respecting parenting orders when there has been an abduction of children

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A process used by parties to a family law dispute to attempt to resolve one or more of the disputed issues outside of court

What is Dispute resolution

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Adjudicative Processes

litigation, or arbitration in which a judge, jury or arbitrator determines the outcome

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Consensual Processes

mediation and negotiation, in which parties attempt to reach agreement

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Advantages of consensual dispute resolution

parties have a constructive way to address emotions, improve communication, parents maintain ability to make final decisions on parenting arrangements, lessens cost for families, reduces costs to court system, shifts focus from “winning” to “problem solving

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3rd party impartial facilitator

mediator or FJC

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Family Violence Screening question 1

do you feel there is an escalating/immediate risk of violence or harassment in your family?

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Family Violence Screening question 2

As a result of the other person’s behavior, have you ever felt fearful, scared or concerned about your physical and emotional safety or that of your children?

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Dispute resolution professions

FJC’s, parenting coordinators, lawyers, private mediator’s, arbitrator

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BIOC

best interests of the child, the BIOC are the only consideration upon which agreements or orders are reached

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What is the law on how much notice is needed before moving out of province when you have a contact order?

at least 60 days, notice of relocation form 16

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Does living together for two years and supporting a family mean someone might have to pay child support if they leave?

see definition of a parent under FLA ; the law says that parents have to look after their children financially, even if one parent doesn’t see or take care of the child; under FLA a step parent can be required to contribute to child support if the step parent contributed to the support of the child for at least one year and a claim for child support is made against the step parent within one year of their last support of the child, can get complicated https://dialalaw.peopleslawschool.ca/child-support/

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Some advantages of accessing PC

No filing fees, forms are simplified, less formal process, more accessible across BC compared to supreme courts often in large urban centers

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Supreme court has jurisdiction over

divorce act proceedings, adoptions, division of family property, changing province and supreme court orders, appeals from the provincial family court

Family Justice registry requirements

PAS, meeting with an FJC see part 6 of PCFR

Family Management Conference

are informal meetings with a judge or a family justice manager who assists with trial readiness, promotes early dispute resolution, and who can make certain interim and final orders, division 4 PCFR for more detail; different than a "trial" or a hearing

3 options to document parenting arrangements

Written Agreement, Order by consent, Court Order

Written Agreement

a legally binding document that is made between the parties (s.6 of FLA )

Order by Consent

(S.219 FLA) a consent order is an order made by the court, many of the details of a written agreement also apply to a consent order

Court Order

if parties are unable to come to an agreement on their parenting matters, they can ask that the court, after hearing evidence, makes a decision. Decisions made by the court are court orders, they are legally binding once pronounced even if the order is not immediately put into written form

How many paths to parentage?

Section 146 of the FLA (Part 7)

Defines a step-parent as a parent for the purposes of child support. That does not mean the step parent becomes a legal parent, but they are considered a parent for the purposes of child support

Married or Have lived together for 2 years or more (continuous period) or Have lived together for less than 2 years and have had a child together; AND The spouse is applying for support within 2 years of the separation, divorce or declaration of marriage being null

definition of spouse FLA

Married or Have lived together for 2 years or more (continuous period); AND The spouse is applying for property and pension division within 2 years of the separation, divorce or declaration of marriage being null

Definition of spouse for property and pension division

Married or Have lived together for 2 years or more (continuous period) or Have lived together for less than 2 years and have had a child together; AND Has lived with the child during the child's life and contributed to the child's care for at least one year; AND The application for child support is being made within 1 year after the step-parent last contributed to the support of the child; AND The step-parent is separated from the parent

definition of step-parent (including the definition of spouse)

Section 37 (2) FLA

BIOC

(a) the child's health and emotional well-being; (b) the child's views, unless it would be inappropriate to consider them; (c) the nature and strength of the relationships between the child and significant persons in the child's life; (d) the history of the child's care; (e) the child's need for stability, given the child's age and stage of development; (f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

What are BIOC in FLA

Age for children in Mediation

age 8

Parents are generally this

Guardians, s. 39 FLA, there are exceptions

Testamentary Guardian

guardianship in case of death, FLA secion 53

When a guardian is facing terminal illness or permanent mental incapacity, what can they do?

appoint a standby guardian s 55 FLA

Parenting arrangements: Key components

Parental responsibilities and parenting time

Examples of Parental responsibilities

s 41 FLA, making day to day decisions affecting the child, where child will reside, who child will associate, requesting/receiving health info, education info, etc

In contrast to the time a child spends with their guardian, this is called what when it's with other important adults

contact s 42

The distribution of parenting time impacts the calculation of what

child support

3 categories that cover compliance respecting parenting time

Denial of parenting time or contact, when denial is not wrongful, failure to exercise parenting time or contact

Split parenting time

When there are two or more children of the marriage and at least one child lives with each parent the majority of their time

majority parenting time

when the child(ren) spend the majority of their time with one parent

shared parenting time

when the child or children have equal or almost equal time with each of their parents it is called

percent that is often used to refer to shared parenting time

40% (where neither parent has less than 40% of time)

How is child support payment determined?

Using the CS guidelines as well as province or territory where paying parent lives, paying parent's annual income, number of children who are eligible for support, living arrangements of the children

Two methods of child support payments

Lump sun or periodic (FJC do not deal with lump sum...)

How far back can CSO or FJC backdate a child support order?

1 year

under s. 7 or CSG these are added expenses that a person can pay on top of "regular" child support

special or extraordinary expenses

What qualifies as a special or extraordinary expense?

the portion or medical/dental insurance premiums attributed to a child, extraordinary expenses for primary or secondary education, extraordinary expenses for extracurricular activities

Child support is intended to pay for what basic needs?

Food, shelter, clothing

Prior to May 1 1997

monies received for child support had to be declined by the recipient as income for tax purposes and could be claimed as a deduction for the payor. Now all orders or agreements since that date are no longer taxable as income to the recpient or tax deductible to the payor

As per the FLA, a person may apply for spousal support whether they are

married or have lived together for at least two years. If they have dependent children, it is not necessary that their relationship was at least two years long. Spousal support can be included in an agreement between the parties or can be determined by the court, if they are not able to come to an agreement.