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6.3 Choosing the Right Law

Resources:

In Chapter 2, you learned the two major laws that apply to separating couples: the Family Law Act and the Divorce Act. Your rights and duties as a parent and a spouse are found within these laws. The laws describe how you settle your key issues if you are unable to settle the issues yourselves.

A judge must follow these laws, so it’s important to understand which law to use before you go to court. You will need to choose which law you are basing your legal position on, so the first step will be to get an understanding of which laws you can use.

The Divorce Act

The Divorce Act is a federal law. It only applies to couples who are, or were, married. The Divorce Act deals with:

  • divorce
  • custody
  •  access
  • child support
  • spousal support

The Family Law Act

The Family Law Act is a provincial law. It applies to both married and unmarried couples.

It deals with:

  • division of property and debt
  • guardianship
  • parenting arrangements (parenting responsibilities and parenting time)
  • contact with a child
  •  child support
  • spousal support

The table below provides a summary of the each law for the key issues of separation and divorce.

Law Summary

What do you want?

The law to use

 

Family Law Act

Divorce Act

Divorce

No

Yes

Care of children

Yes

(called guardianship and
parental responsibilities)

Yes

(called custody)

Time with children

Yes

(called parenting time, contact with child)

Yes

(called access or custody)

Child support

Yes

Yes

Spousal support

Yes

Yes

Division of property
and debt

Yes

No

Protection orders

Yes

No

 

Lawyer’s Tip:

Pay careful attention to the terms you use. The words used in the Divorce Act are different than the words used in the Family Law Act.

For example, “custody” is used in the Divorce Act. “Guardianship” is used in the Family Law Act.

If you and your former spouse were never married, the Family Law Act will be applied to your separation. If you were married, you can use the Divorce Act or the Family Law Act. For example, a couple would use the Divorce Act for law about getting a divorce. But, if there were issues about dividing property or the need for a protection order, the Family Law Act would be used.

Key take away points

  • If you are married, you can use either the Divorce Act or the Family Law Act
  • If you are in a common law relationship, you must use the Family Law Act

Divorce Act vs. Family Law Act

Only married couples can use the Divorce Act. You will find that there isn’t much difference between your legal rights as parents in either act. Only under the Divorce Act can you get a divorce and only under the Family Law Act can you deal with property division.

It is recommended that if you’re applying for a Divorce use the Divorce Act, for all other matters use the Family Law Act. If in doubt and need more information, consult a legal professional. Refer to chapter 4 to find legal help.