03 October 2011

Family Law Act to Be Introduced This Fall

The text of the Lieutenant-Governor's Speech from the Throne has just been published, and, in the context of a discussion about improving access to justice, says this:
"The government will introduce the new Family Law Act during this session, to promote early resolution of family law problems."
There you have it; change is coming! Here's some background reading:

If the new bill looks anything like the white paper, the law of domestic relations in this province is going to undergo a stem to stern overhaul which will place British Columbia at the forefront of law reform in Canada.

Visit the Legislative Assembly's website at www.leg.bc.ca/39th4th/index.htm to track the introduction and progress of the bill through the legislature.

Update: 14 November 2011

Bill 16, the Family Law Act, was introduced in the provincial legislature today. I've summarized the new legislation in a new post, "Family Law Act Introduced!"

6 comments:

  1. What the government isn't telling BC residents is that this legislation has the effect of legalizing polygamy. A civilly married person MUST divorce before becoming eligible to take another civilly married spouse. However, they do not need a divorce, only cohabitation as perceived spouses, in order to have multiple spouses under the new legislation. Without the existing spouse or "perceived" spouses consent. In other words it will just be like Saskatchewan where "polygamy is just relationship overlap". It is just a matter of time until people demand equality of treatment and get the rights and obligations of marriage for multiple civil spouses too. BC residents will not have the right to NOT become "the spouse of a person who has a spouse" (s.51 Saskatchewan Family Property Act).This act is a crime because it permits polygamy as it currently sits on the criminal code of Canada.

    "Unmarried couples will be brought into the proposed act's scheme for the division of property where they have lived together for at least two years in a marriage-like relationship, or for a lesser amount of time if they have a child."

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  2. I don't think that the legislation discussed in the white paper actually legalizes polygamy; the Family Relations Act has accommodated the possibility of having a married spouse while also being in an an unmarried spousal relationship for some time now, and since unmarried spouses don't go through a form of marriage ceremony such circumstances aren't actually polygamous ...or polyandrous for that matter.

    However, if the idea of multiple spouses gets your knickers in a knot, try s. 1(2) of Ontario's Family Law Act: www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90f03_e.htm#BK1.

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  3. Interesting JP.. however I want to add..s.293 makes criminal:
    a) practices or enters into or in any manner agrees or consents to practice or enter into
    (i) any form of polygamy, or
    (ii) any kind of conjugal union with more than one person at the same time,
    whether or not it is by law recognized as a binding form of marriage, or
    (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),
    is guilty of an indictable offense and liable to imprisonment for a term not exceeding five years.

    There is no mention of "a form of marriage ceremony" in s.293. There is the word ceremony in s.290 (Bigamy)I think you know that conjugal union/relationship has been used to describe common law marriages cohabitation as spouses)for 50 yrs. Even Tolhurst v. Wright calls cohabitation as spouses "adultery"..not "spousal". Where did the provinces get the idea that adultery equals spouse with MULTIPLE marital rights, protections and obligations? Really, girlfriend, boyfriend, adulterer, etc. more legally describes civilly married persons who cohabit with single or civilly married people. In Tolhurst, neither "cohabitant" claimed to be spouses of the other.
    If BC is "party to a consent" or "party to a contract" via binding recognition and tacit approval in provincial legislation, then they themselves are in violation of S.293.
    The Ontario example you mention is also liable to violation of S.293. However, that is still a far cry from providing a legally binding contract and providing unilateral consent for multiple conjugal relationships, by a government,that is not a jurisdiction that allows it. No case law has Canada or US (other than Saskatchewanand they may be soon in litigation that is going to cost the taxpayer)is a jurisdiction that allows it. Nor can a province allow it and provide consent for it, under compliance with federal criminal code. It has been and is the duty of the Federal AG to act appropriately to end any acts that lead to bringing the administration of justice into disrepute.

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  4. Ya,the new legislation legalizes polygamy. Period.

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  5. What impact does Bill 16 have on current cases, particularly around mobility. Since it has received royal assent but is not in full force for another 12-18 months. Do they still consider any of the material in Bill 16 when making decisions since that is the way the legislation is heading? If our case is trapped in the middle of this transition how does that impact us?

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    1. The new act should have no impact on cases presently in progress. Until the act comes into force it has no effect and is not law, and the court should not be taking it into account in making decisions on family la matters. That said, nothing is preventing lawyers and parties to consider and apply the principles and of the new act in settlement discussions.

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