18 September 2010

The Present Effect of the Proposed Family Law Act

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information.

A lot of people have been asking about how the proposed Family Law Act, described in the recently-released White Paper (PDF), impacts on their present legal problems. This is an important question because the proposed new law differs from the current Family Relations Act quite significantly. The answer, however, is simple: the Family Law Act doesn't have any effect at all right now, and won't for some time.

The White Paper discusses a bunch of policy options about different issues in family law, and provides a sketch of what the legislation flowing from those options might look like. The Family Law Act isn't finished yet and some policy decisions still need to be made by the Attorney General's office, and as a result it's a long way from becoming law.

Although I expect that the draft Family Law Act which eventually makes its way to the legislature will look an awful lot like the act described in the White Paper, it would be unwise in the extreme to start making plans and drafting agreements on the assumption that what we presently see is what we'll eventually get.

From Draft Legislation to Law

When the new Family Law Act is ready to go, which won't be until some time in 2011, the provincial government will table the draft act as bill in the legislature, where the bill will be subject to debate by all parties and possibly be amended as a result. Since the present government has a healthy majority, the passage of the bill is almost a sure thing.

Once the bill passes its third and final reading, the Family Law Act will become law when it receives royal assent. "Royal assent" is essentially a constitutional tip of the hat to Queen and is given by the Lieutenant Governor on the advice of (and at the timing of) the government.

Taking Effect

Under s. 3 of the Interpretation Act, the commencement date of a new act is the date on which it receives royal assent, unless the act itself says otherwise. Because it's important that people be able to plan their lives in accordance with the law in force at the time, new laws rarely take effect earlier than the date of royal asset.

Under s. 4 of the act, a new act comes into force at the beginning of the day of its commencement, and any legislation it repeals ceases to have effect at the same time. "Coming into force" means becoming the official, binding law of the land. Legislation which is "repealed" has been cancelled or voided.

What all this means is that if the new act receives royal assent on 1 October 2011, for example, the new Family Law Act will be law, and the old Family Relations Act will cease to have effect, from October 1st forward. A new Family Law Act will not have a retroactive effect unless it says it has a retroactive effect, and that's unlikely.

Existing Family Relations Act Proceedings

Section 36 of the Interpretation Act says that "every proceeding commenced under the former enactment must be continued under and in conformity with the new enactment so far as it may be done consistently with the new enactment."

Note that last bit. There are likely going to be a lot of proceedings under the old act which can't be "done consistently" with the new act (for example, claims for parental support or claims for child custody) and in cases like this the proceeding will have to continue under the old act. This is very important because s. 37 says that:
(1) The repeal of all or part of an enactment, or the repeal of an enactment and the substitution for it of another enactment, or the amendment of an enactment must not be construed to be or to involve either a declaration that the enactment was or was considered by the Legislature or other body or person who enacted it to have been previously in force, or a declaration about the previous state of the law.
(2) The amendment of an enactment must not be construed to be or to involve a declaration that the law under the enactment prior to the amendment was or was considered by the Legislature or other body or person who enacted it to have been different from the law under the enactment as amended.
In other words, you don't get to argue that you should win a point because the new law is different than the old law. The court won't be allowed to draw any conclusions about proceedings under the old law just because the new law says something different than the old law.

Summary

The Family Law Act described by the White Paper doesn't exist except as a policy proposal. It may become one of the laws of British Columbia in the future, but that will require a complete draft Family Law Act passing through the legislature and receiving royal assent. Don't make any plans on the assumption that the law which eventually comes into force will look like the White Paper's proposal.

If the Family Law Act becomes law, it will have legal effect beginning on the day it receives royal assent unless the act itself says otherwise. At present, the Family Law Act described by the White Paper has no legal effect.

Family Relations Act proceedings existing at the time the Family Law Act comes into force will continue under the new act to the extent possible. Proceedings based on any provisions of the Family Relations Act not carried on in the new act will continue under the old act.

For more information about the White Paper, click on the "White Paper" label below.

No comments:

Post a Comment