This post is about British Columbia. Divorce is federal law, so some of this applies across Canada. Provinces govern property division, and other provinces do things differently. Support for children and spouses, and parenting for separating couples, are covered by both the federal Divorce Act and BC’s Family Law Act. The Family Law Act applies to both common-law couples and married couples who are separating. If you live outside BC, check your own province’s rules.

Before you decide anything, you need to know where the law starts. Most people walk into separation with ideas from friends, TV and the internet. Some of those ideas are wrong. Knowing the defaults keeps you from fighting for things you aren’t entitled to. It also keeps you from giving up what you are entitled to.

Separation and divorce are not the same thing

Divorce is the legal process that formally ends a marriage. If you are in a common-law relationship and have never been married, you do not need a divorce. In BC, the Supreme Court of British Columbia grants divorces.

Separation applies to both married and common-law couples. It means living separately and apart with no intention of reconciling. In BC, you can be separated while still living under the same roof. If you are married, you must separate before you can divorce, and you must be separated for at least a year before the divorce can be finalized.

You can stay separated without ever divorcing. You can still be financially protected. That protection requires a separation agreement or court orders confirming the terms.

The separation agreement comes first

The separation agreement is usually the most time-consuming part of the process. It gives you the financial protection to live independently. If you have children, it also includes a parenting plan. It clarifies co-parenting and how to untangle family finances. Treat it as a process, not a destination, and you are already ahead.

Divorce itself is relatively straightforward once the agreement is in place. The ground for divorce is that the marriage has broken down. Courts usually grant it on a “no-fault” basis, after you have lived separate and apart for a year. Before a court grants a divorce, it needs to be satisfied that arrangements for the children are in place. That is another reason the agreement comes first.

If you are common-law, watch the clock

In BC, common-law partners are generally treated as spouses once they have lived together in a marriage-like relationship for two years. This differs from the Income Tax Act, which treats you as common-law partners after one year of living together.

You have two years from the date of separation to start a court action or begin mediation or Collaborative Practice. Mediation and Collaborative Practice pause the deadline while you negotiate through those processes. Do not assume other negotiations pause it. Speak promptly with a BC family lawyer to confirm how to protect your claim before the deadline expires.

50/50 is the starting point

Under BC’s Family Law Act, the default is that each person leaves with half of the family property and family debt built up during the relationship. The law is designed to protect that default. You decide how to arrange who keeps what. The goal is an equal starting position for both people.

There are exceptions. Property received as a gift, an inheritance, an insurance settlement or a windfall may be excluded from division if it still exists at separation. Only the original value is excluded. Any growth during the relationship is family property. Talk to a BC family lawyer about how this applies to you.

Child support

Children have a legal right to support from both parents. In BC, the Child Support Guidelines set the amounts. The federal guidelines apply if you are divorcing, and BC has matching provincial guidelines for everyone else.

How much is paid depends on how much time the children spend with each parent. If the children are with one parent more than 60% of the time, the other parent pays support to that parent based on their income. If each parent has the children at least 40% of the time, each parent owes the other support based on their own income. The higher-income parent usually pays more. In addition, parents are expected to share special expenses, such as childcare needed to work and school fees, in proportion to their incomes.

The guidelines are designed to reduce conflict, keep outcomes consistent and encourage settlement.

Spousal support

Spousal support is more complex. It depends on many factors. Duration and amount vary widely. BC courts use the Spousal Support Advisory Guidelines as a reference.

A short relationship between two people with similar earning potential may mean little or no support. A longer relationship where one person stepped back from their career may mean longer-term support. No two families are alike. Talk to a lawyer to understand how spousal support may or may not play a role in your separation.

Which court does what in BC

Most families never need either court. A separation agreement settles the issues, and court is for when you can’t agree. Court is slow and expensive, and it increases conflict. If you do end up there, it helps to know that BC has two courts for family matters, and they do different things.

Provincial Court. It handles parenting and support. It can make orders about guardianship, parenting arrangements, child support and spousal support. It is less formal than the Supreme Court. It cannot grant a divorce or divide property or debt. Free Family Justice Counsellors at the Provincial Court can mediate and help families settle without a court appearance.

Supreme Court of British Columbia. It can make all the orders the Provincial Court can. It is also the only court that can grant a divorce and the only one that can divide family property and debt.

If you need a court and are acting without a lawyer, the Provincial Court may be the best place to start. Parenting matters are the most important, and the court can also decide support. It encourages parents to try mediation before a hearing. That works best when each parent has had legal advice and has support. If there is family violence or a major power imbalance, mediation may not be safe. Say so before you agree to it. Screening 101 explains why.

Once parenting is settled, a lawyer or mediator can likely help you sort out property. Avoid the Supreme Court if you can. It is expensive and heavy on procedure. You can do almost all of the work outside of it. If you agree on everything, you only need it for the final divorce, which can be done without a court appearance by filing the required paperwork.

If you can’t settle property, don’t let that stop you. Keep working on everything else. Sort out parenting, if you have children, and support. Keep moving forward so conflict doesn’t build up. Look to consensual dispute resolution first, such as mediation or the collaborative process. Choosing a Family Justice Professional explains the options. Most things resolve without going to court. If property doesn’t, the Supreme Court can divide it. Ask a lawyer what deadlines apply to you.

Where to read more

This post is general information about BC, not legal advice. Talk to a BC family lawyer about your situation.

Next in the series: the collaborative approach.

Renée

Renée

My days these days are mostly advocacy, with my kids always first, and hiking, biking, and cold plunging worked in whenever I can. Winter cold plunges aren’t for everyone, but there’s a strange kind of beauty and calm in it that I’ve come to need.

Separation was a journey. It took time, and it taught me most of what I know now.

I write about what I learned along the way, and about the family justice system I ended up spending years inside of.