Family Law

Q: What’s the difference between separation and divorce?

A: Under BC family law, separation is defined as when a couple that has been in a relationship chooses to live independently of each other. A divorce is a court order ending a valid marriage. In BC, family law also applies to people in same-sex relationships.

There is no specific legal definition of “separation” but it does require a physical separation coupled with recognition by at least one of the spouses that the relationship is at an end. Spouses can continue to live in the same family home during separation so long as they can establish they are living separate and apart despite being under the same roof. Couples often prepare a separation agreement that outlines how they will organize their affairs related to family property, debt, household expenses, and parenting arrangements if the couple have children together.

Q: Can you get a divorce if you've been separated for less than a year?

A: The Divorce Act says you can get a divorce act on one of three grounds:

• intentional separation for more than one year

• adultery

• physical or mental cruelty

Most divorces are granted because a couple has been separated for more than a year. See Separation and Divorce for more about this.

It's possible to be separated even though you're still living together in the same home, but you need to prove that you're not living as a married couple if this happens. See Proving you're separated if you and your spouse still live together for more about this.

You don't need to wait a year if you want to get a divorce because of either adultery (your spouse cheated on you) or physical or mental cruelty. But if you're applying on these grounds, you need to be able to prove the adultery or cruelty. So, unless your spouse is likely to admit to being adulterous or cruel, getting a divorce on those grounds will take more time and money than waiting for a year and getting a divorce that way.

Q: Can you apply for an undefended divorce in BC if your spouse lives outside of BC?

A: Yes. If you've been living in BC for at least one year and you're still living in BC, you can apply for a sole or joint undefended divorce in BC Supreme Court.

The Divorce Act says you can apply for a divorce in any province or territory where you or your spouse have been a resident for a year immediately before the divorce.

If your spouse agrees to the divorce, you can use one of our guides to help you do your own uncontested divorce.

Q: Can Family disputes be resolved from out of court??

A: It is better for most families and the justice system to apply out-of-court dispute resolution.

For families, out-of-court dispute resolution is generally cheaper, quicker, and less acrimonious than court proceedings and the outcomes are better and longer-lasting. Although not all cases can be appropriately resolved in out-of-court dispute resolution, most family disputes are better dealt with outside the courtroom.

For the justice system, out-of-court dispute resolution can keep most families, who do not need the court to resolve their dispute, from ever having to enter a courtroom. This will better ensure the effective use of valuable court resources.

The Ministry of Justice provides publicly funded family dispute resolution services at Family Justice Centres and Justice Access Centres located throughout the province.

Our lawyer can definitely help in all kinds of proceedings to make sure that your family matter is well taken care of.

Q: What is a protection order?

A: The Family Law Act creates a new protection order to restrain a family member from contacting or communicating with another family member where there is a risk of family violence. Protection orders replace restraining orders under the Family Relations Act.

To promote timely, effective enforcement — which can save lives in this case — the new protection order regime is enforced through section 127 of the Criminal Code rather than through the civil justice system. To ensure a consistent approach, breaches of orders under the Child, Family and Community Services Act to protect children are also a Criminal Code offence.

The protection order itself is a civil order. When the order is breached, the breach triggers the use of the Criminal Code. If the protection order is never breached, the parties are never brought into the criminal system.

Protection orders can be made on a stand-alone basis. Priority is given to safety-related orders—protection orders, peace bonds or other safety-related orders will be enforceable despite a conflicting family order.

These changes will improve enforcement of safety-related orders and respond to numerous reports, including the Keeping Women Safe report and the Representative for Children and Youth’s report, Honouring Christian Lee, that say that consistent enforcement of protection orders is critical to increasing victim safety.

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