The New Family Law Act
On 18 March 2013 the new British Columbia Family Law Act comes into force and will replace the current Family Relations Act and the way the law in BC deals with cohabitation, marriage, separation, and divorce. There are too many changes to go through in detail in a blog post, but here are some highlights to be aware of if you are currently moving in with or marrying your partner or if you are in the process of ending your relationship.
Overall, the Family Law Act covers the same ground as the Family Relations Act, but it contains some updated and revised terminology, adds some concepts that were absent from the prior legislation and changes some procedures for resolving conflict. The new legislation has more of a focus on putting the child’s interests first and on settling matters out of court through mediation or arbitration.
The Family Law Act includes a long list of new terminology for old concepts. For example, the Family Law Act does not talk about “custody” or “access” of children; it uses terms such as “guardianship”, “parental responsibilities”, and “parenting time”. The definitions of these and other terms are all found in the legislation itself and, overall, the new Act is written in a way that uses more “plain language” and is easier to understand. Other terminology is left the same, but has new definitions, such as “spouse”, which now includes people who are married or who used to be married, unmarried people who have lived together in marriage-like relationships for more than two years, and unmarried people who have lived together for less than two years but have had a child together.
(It is worth noting that some of the “old” definitions will still be used in the federal Divorce Act.)
The Family Law Act puts even more of an emphasis on the best interests of the child. In the Family Relations Act, many issues were determined according to a variety of factors, including the best interests of the child, but now the child’s interests are given even more emphasis, and in many instances is the only factor to be considered in deciding on a course of action or an agreement.
Not only are old sections in the legislation modernized and made more equal in the new legislation, but new sections are added to address issues that the old legislation was silent on. This is true for example of the section that deals with relocation. Where one guardian wants to move with the child to a new city or area that will have a “significant impact” on the child’s relationship with the other guardian or another person who plays a significant role in the child’s life, the guardian that wants to move must give 60 days’ notice to the other guardian or must have a court order approving the move. If the guardians cannot agree, the matter will be decided in court where the court will consider, amongst other things, whether the move is being made in good faith and does it enhance or hinder the best interests of the child.
Obviously, the relocation section, as with all the whole scheme of the new act, will have to be interpreted by the Courts as cases on these issues are heard and the nuances of concepts like ‘significant impact’ and ‘moving in good faith’ are given more specific meaning.
A significant change addresses “family property” and “excluded property”. Family property is that property which a couple will be expected to divide at the end of a marriage or common-law relationship; excluded property is that property which is not family property. Under the Family Law Act, excluded property is all property that each person brought with them into the relationship; gifts and inheritances given only to one spouse during the relationship; compensation and insurance payments to one spouse during the relationship for injury or loss; and property bought with excluded property…however… the increase in value in excluded property during the relationship does become family property and the law presumes that family property is shared equally between the spouses.
What this new approach to family property means is that if you are thinking about getting married (or more importantly, living together), you should set out in an agreement what each of you owns and what it is worth. It might seem apparent enough now which of you brought in the vintage Eames chair and which of you owns the 1964 Fender Stratocaster, but 20 years from now when you are splitting up, your memories might be hazy. Save yourself the hassle and expense later and make an agreement with an inventory now.
In general, if you are coupling or splitting up, this is a good time to take a look at your rights and obligations in light of this new law. The law comes into power on 18 March 2013, but if you have already been separated for less than two years, the new law applies to you (and if you are mid-way through a separation but have not yet signed an agreement, you may have to revisit your draft agreement to ensure it conforms to the new law).
Dealing with or planning for the demise of your relationship is never pleasant and is an easy thing to put off, but it should be done at some point, so consider the inauguration of the Family Law Act as a gentle reminder that you really should take proactive steps early in your relationship to protect your interests; and, if you are at the end of your relationship, this new legislation is going to determine your separation and divorce, so now would be a good time to become familiar with it, either on your own or with the help of a lawyer.