FORMER BC Family Relations Act
If you are not married but are living in a “marriage-like relationship” you may benefit from legal advice before the one year anniversary of the commencement of that relationship (if there are children involved) or before the second year anniversary of the commencement of that relationship (if no children are involved).
The Family Relations Act of British Columbia, (now replaced by the Family Law Act) imposed statutory obligations on a “spouse” as defined in that Act and these obligations had a significant impact on the division of assets and legal support requirements upon breakup. This Act now only applies (at least in part) to actions started before March 18th, 2013.
NEW FAMILY LAW ACT
Highlights of the Legislation
Best Interests of the Child
The act makes the best interests of the child the only consideration when decisions affecting the child are made. The act expands the best interests of the child test to include:
the history of care of the child;
the impact of family violence on the child’s safety, security or well-being;
the child’s views, unless it would be inappropriate to consider them; and
any civil or criminal proceedings relevant to the child’s safety and well-being.
Settling Disputes Out of Court
The Family Law Act supports ways for parents to resolve family matters outside of the courtroom where appropriate, through agreements, mediation, parenting co-ordination and arbitration.
Addresses Family Violence
The act also increases the ability of the court to deal with family violence by:
defining family violence;
legislating risk factors considered in parenting cases involving violence; and
making the safety of children a key goal of the best interests of the child test.
In addition, it creates a new type of order – a protection order – to replace the existing Family Relations Act restraining orders. Protection orders will limit contact and communication between family members where there is a safety risk.
To ensure there is a consistent and effective approach in cases where safety is at risk, breaches of protection orders under both the Family Law Act and the Child, Family and Community Services Act will be a criminal offence.
Time with a Child
The legislation helps ensure children have time with their parents by creating a range of remedies and tools for non-compliance that will ensure parents receive – and follow through on – parenting time they are given. These include participation in family dispute resolution or counselling; reimbursing expenses such as travel, child care, lost wages by the parent unable to have time with the child; and payment of a fine by the parent denying the time.
The new Family Law Act reforms property division so that certain property, such as pre-relationship property and inheritances generally will not be divided up.
Family property now includes all property owned by one or both spouses at the date of separation unless the asset is excluded, in which case only the increase in the value of the asset during the relationship is divisible. Whether an asset is used for a family purpose will not be relevant in deciding if it is family property.
Property division applies to married spouses and to unmarried spouses who have lived in a marriage-like relationship for at least two years.
The new Family Law Act establishes a much needed framework for determining a child’s legal parents, including where assisted reproduction is used.
The proposed treatment of spouses under the new law marks a significant broadening of spousal support and property division rights for non-married persons. Unlike the Family Relations Act, the new law provides that all individuals meeting the definition of “spouse” are entitled to property division and spousal maintenance.
The new definition is broad. The proposed legislation defines a “spouse” as follows:
A person who is married to another person,
A person who lived with another person:
In a marriage-like relationship for a continuous period of at least two years, or
In a marriage-like relationship of some permanence if the persons are together the parents of a child and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender.
The provisions allow persons who have cohabited and had children together to claim property division and spousal support even where the relationship may have been brief.
The new Family Law Act brings change for B.C. citizens both now and in the future. Many of the proposed changes are so far-reaching that it is wise to start now contemplating their effect on your property and maintenance rights.
One thorny issue that B.C. family law lawyers confront presently is the interpretation of Section 120.1 of the existing Family Relations Act. Some courts have interpreted cohabitation agreements, which specifically seek to protect property rights, as opting the parties into Part 5 of the Family Relations Act. This is the opposite result from what was obviously intended and has resulted in confusion and, at times, little protection for common law spouses.
The new Act eliminates Section 120.1 of the FRA and instead includes un-married spouses in the property division regime. This makes the present state of existing cohabitation agreements perhaps even more precarious. However, the proposed changes create a new regime under which common law spouses can seek the protection of cohabitation agreements drafted to the requirements of the new Act.
The proposed changes also address the enforceability of agreements. For the first time in British Columbia, there will be a codification of the circumstances under which a family law agreement may be set aside. This aspect of the changes could result in decreased certainty with respect to both past and future agreements. For example, Section 18 of the proposed Family Law Act states that the court may set aside an agreement if satisfied it would be unfair not to do so because a party did not understand the nature or consequences of the agreement. Meeting this test could be as simple as a party’s testimony or affidavit evidence. Because of the changes proposed with respect to the enforceability of family law agreements it would be wise to revisit any co-habitation or other family law agreements that are presently in force.
One welcome new provision is the treatment of Family Debt. The new Family Law Act provides that, subject to an agreement or order that provides otherwise, spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution.
Family Property is defined as all real property and personal property that, on the date the spouses separate, is owned by at least one spouse or in which at least one spouse has a beneficial interest, and includes after acquired property that is derived from the pre-separation property. Hence, if one party took pre-separation property and sold it and subsequently acquired a new after separation property, that new property would be included within Family Property and be subject to division.
The New Family Law Act treats parties who have lived together for 2 years or more, in essentially the same manner as married couples. Further, if you live together for less than one year, but have a child together, you are also treated just as married couples are.