14 November 2011

Family Law Act Introduced!

Attorney General Shirley Bond has this afternoon tabled Bill 16, the Family Law Act, for first reading in the Legislature. Assuming the bill becomes law, which seems a near inevitability given the government's comfortable majority at present, the new Family Law Act will completely revamp British Columbia's law on domestic relations and give us the most progressive legislation on relationship breakdown in the country.

In this post I will provide a rough summary of the key features of the proposed Family Law Act. Later posts will provide more details and better analysis, and examine some of the technical issues relating to the implementation of the new legislation. For more information about the background to the bill, click on the "White Paper" and "Family Relations Act" labels below.

A new emphasis on out-of-court resolution

The act encourages the resolution of family law problems by means other than litigation. The act gives equal emphasis to agreements and court orders, and provides better support for out of court negotiations by making complete disclosure mandatory in all cases and by imposing penalties for failures to make disclosure which result in the court setting aside an agreement.

The act will give the court new authority to refer parties to counselling and to out-of-court dispute resolution services like counselling and mediation, including as a means of helping parties comply with court orders. The court will be able to appoint a parenting coordinator to manage the implementation of orders and agreements involving children, even over the objection of a party.

The act also provides improved support for the arbitration of family law disputes and will make a host of changes to the Commercial Arbitration Act to better accommodate family law disputes.

A child-focused approach to parenting after separation

The new act throws out conflict-laden terms like "custody" and "access" and replaces them with a new model of parenting after separation which prioritizes a child's entitlement to proper parenting and meaningful time with each parent over a parent's right to control the child's upbringing and have a schedule of contact with the child.

Under the act, parents who have lived together after their child was born will be the child's guardians until they agree or a court orders otherwise.

People who are guardians, which may include people other than parents, have parental responsibilities in respect of the child, including the duty to raise the child, to make decisions about where the child lives and with whom the child spends time, and to make choices about the child's medical care, school, religion and so forth. Parental responsibilities can be divided or shared between guardians. The time a child is with a guardian is parenting time, and references in the legislation to parenting arrangements means arrangements made in respect of parental responsibilities and parenting time.

People who are not guardians, including parents who are not guardians, have contact with a child and do not have parental responsibilities. "Parenting arrangements" does not include arrangements made in respect of contact.

A new approach to the best interests of children

Decisions about parenting arrangements and contact, whether in an order or an agreement, are to be made in the best interests of the child. The best interests of the child are no longer the "paramount" consideration but the only consideration the court or the parties may take into account when making an order or agreement affecting a child.

The act provides a new, expanded definition of best interests which, among other things, requires consideration of: the child's views and wishes, the history of the child's care, the capacity of the child's parents, and any history of family violence. The act requires the court to assess the nature, extent and impact of family violence on the child's well being and provides a list of factors which the court must consider in making this assessment.

Planning for a parent's incapacity

The act allows guardians to appoint stand-by guardians to take over a guardian's parental responsibilities in the event the guardian is no longer able to manage those responsibilities. The appointment may take effect on the guardian's incapacity and may be permanent or last only for the duration of incapacity.

A guardian may also appoint a person to take over in the event of the guardian's death. Testamentary guardians may be appointed by the deceased guardian's will or through the execution of a new form.

Managing children's property

Under the new act, parents are not presumptively entitled to act as guardians of their children's property, except for property with a value less than a certain amount. Property guardians, who may include parents, must be appointed by the court in consultation with the Public Guardian and Trustee.

At last, some rules about moving with a child!

The act provides a mechanism to address mobility issues. This is welcome indeed as the law on this extremely difficult issue has so far been entirely governed by case law, much of which is inconsistent to the point of being contradictory, despite the Supreme Court of Canada's decision in Gordon v. Goertz.

Under the new act, a guardian wishing to "relocate" with a child will have to give 60 days' notice to anyone else who is a guardian or has contact with the child. Relocation means a change in a child’s residence “that can be reasonably be expected to have a significant impact on a child’s relationship” with a guardian or another significant person. A guardian who opposes a proposed relocation will have 30 days to from delivery of the notice to file an objection.

The act provides a test to determine whether the court should allow a proposed relocation when negotiations between the parties have failed: the guardian wishing to move must prove that the proposed move is being made in good faith and that reasonable arrangements have been made to preserve the child's relationship with the parent who is not moving. When the guardians have equal or almost equal parenting time, the guardian wishing to move must also prove that the move is in the child's best interests.

New rules about assisted reproduction

The new act makes extensive provisions for people having children by assisted reproduction. Until now assisted reproduction has been governed only by the federal Assisted Human Reproduction Act and the common law; there was no provincial legislation on the subject.

Under the Family Law Act, people will be able to contract for the donation of sperm or eggs, or for a woman to act as a surrogate mother carrying an embryo created with any combination of donated gametes, including or not the gametes of the people wishing to have the child. These contracts, as long as they are executed prior to conception, will be sufficient to determine the legal parentage of a child, and, if the parties to the agreement wish, can name more than just the people wishing to have the child as parents. A donor or surrogate may also be a legal parent.

Prioritizing child support obligations

Under the new act, as under the current law, parents as well as stepparents and guardians are responsible to pay child support. The new act will make the duty of a guardian who isn't a parent secondary to that of a parent, and a stepparent's duty to pay child support secondary to that of a non-parent guardian.

A payor's obligation to pay child support will continue to take priority over any obligation to pay spousal support, meaning that if a payor can't pay both amounts only child support will be payable. However, the end of a child support obligation may result in a reconsideration of the payor's spousal support obligation.

Independent children under the age of majority

Children younger than age 19 may stop being entitled to child support where they have voluntarily withdrawn from their parents' care, for reasons other than family violence or intolerable living conditions.

An expanded definition of "spouse" for spousal support

"Spouses" are entitled to apply for spousal support. Spouse, for the purposes of spousal support applications, includes:
  1. people who are married or who used to be married;
  2. unmarried people who have lived together in marriage-like relationships for more than two years; and,
  3. unmarried people who have lived together for less than two years but have had a child together.
Married spouses must apply for spousal support under the new act within two years of divorce or the annulment of their marriage. Unmarried spouses must apply within two years of the date of their separation.

Harmonizing spousal support with the Divorce Act

The provisions for spousal support in the new legislation mirror those set out in the federal Divorce Act. A spouse's entitlement to support is determined by reference to a list of objectives and, once entitlement is found, the amount of support payable and the length of time it will be payable for are determined by reference to a list of factors.

The Spousal Support Advisory Guidelines is not referenced in the new legislation. This continues the present status of the Advisory Guidelines, which is not a law and has been formally adopted by neither the Divorce Act nor the Family Relations Act.

A limited revival of misconduct

Spousal misconduct has been a forbidden consideration since introduction of the no-fault amendments to the Divorce Act in 1968; before those amendments, spousal misconduct, such as committing adultery or being abusive, was a legitimate consideration in making or refusing to make a spousal support order.

The new act will allow the court to consider misconduct which causes or prolongs a spouse's need for support as well as misconduct which unreasonably affects the capacity of a spouse to pay support. The point here, I think, is to penalize: goldbricking spouses who fail to take meaningful steps to become self-sufficient within a reasonable period of time; oppressive behaviour which hinders or delays a spouse's ability to be self-sufficient; and, spouses who arrange a decrease in personal income to duck a support obligation.

Reviewable arrangements for spousal support

Orders and agreements on spousal support may require that provisions for spousal support be reviewable. A review can happen at a certain date or upon the occurrence of a specific event, and the order or agreement can specify how the review will occur — such as by a court hearing or by a process of mediation — and what issues or circumstances will be considered at the review.

Under the act, spousal support will also be reviewable when a spouse becomes entitled to receive benefits from a pension, whether the order or agreement provides for a review in those circumstances or not.

Making support obligations binding on a payor's estate

Orders and agreements for child support and spousal support can be made binding on a payor's estate. The court can also require a payor to maintain a life insurance with a spouse or child named as the beneficiary of the policy.

A new, more intuitive scheme for property division

Under the new act, there will be two categories of asset, assets presumptively excluded from division and assets presumptively divided equally. Under the Family Relations Act, almost all property owned by either or both spouses was up for division, regardless of who owned an asset or when it was acquired; all that mattered was whether the property was "ordinarily used for a family purpose."

Under the new act, excluded property includes assets acquired by a spouse before the relationship, gifts and inheritances received by a spouse, certain kinds of court awards and certain kinds of insurance payments. Except for the increase in value of excluded property during the relationship, excluded property remains the property of the spouse who acquired it.

Family property is primarily composed of the assets acquired by either spouse during the relationship and is owned by a spouse at the date of separation. Family property is presumptively shared equally between spouses.

The court can divide excluded property or reapportion family property but only when it would be "significantly unfair" not to do so. The point here, I think, is to raise the threshold of unfairness that must be met before the court can depart from the presumptive property division scheme.

As if these changes weren't enough, the new scheme for property division will apply to married spouses as well as unmarried people who have lived together for more than two years! This is a really important feature of the new law because unmarried couples are cut out of the parts of the Family Relations Act which divide property between married spouses, largely leaving unmarried people stuck with difficult and often unsatisfactory claims based on unjust enrichment and trust law.

Allocating responsibility for debts

The act will also allow the court to divide responsibility for "family debts" between spouses. Family debts are debts incurred during the relationship, or incurred to maintain family property after separation, and is presumptively shared equally between spouses

Addressing family violence

The act has a new definition of family violence which includes, in addition to physical abuse, sexual, emotional and psychological abuse, forcible confinement and restriction of a person's autonomy, and withholding the necessities of life.

When a person is at risk of family violence, the court may make a protection order which can include provisions restricting contact between the parties, restraining a party from going to the family home, restraining stalking-type behaviour, or restraining a party from possessing weapons. The new act provides that where another order under the Family Law Act conflicts with a protection order, the terms of that order are suspended to the extent of the conflict. This could mean, for example, that a protection order preventing communication between the parties might result in the suspension of a separate order for contact or parenting time if that order would normally require communication between the parties.

The Family Law Act contains no provisions to enforce protection orders. Instead, such orders can only be enforced by the police through s. 127(1) of the Criminal Code which makes it an offence to breach a court order.

Better management of court processes

Under the act, the court will be able to make a number of conduct orders intended to help the court manage its processes, manage the parties before it and encourage the settlement of disputes. Among other things, the court can order that parties attend counselling, impose restrictions on how they communicate with each other, and require that a party post a bond to secure his or her good behaviour.

Conduct orders include case management orders such as an order striking or dismissing all or part of a claim, an order prohibiting a party from bringing further applications without permission from the court, or an order requiring all further applications to be heard by the same judge.

The new act enhances the court's ability to enforce its own orders — except for the enforcement of protection orders — and the court may order that a party post security for the party's compliance with an order, pay the other party's expenses for enforcing an order, or pay a fine of up to $5,000. Where nothing else will secure a party's compliance, the court may order that the party be jailed for up to 30 days. These provisions apply to the provincial court as well as a the supreme court, and will significantly improve the provincial court's ability to deal with parties in contempt of court.

What else is going on?

In anticipation of the new act, the Supreme Court has revived its rules committee — yes, the committee which was responsible for the brand new family law rules introduced last summer — to overhaul them again to accommodate the new language, new processes and new orders available under the Family Law Act. The Provincial Court has struck a rules committee to the same purpose.

Whatever changes may flow from rules committees' recommendations, they are unlikely take effect any sooner than the coming into force of the new act.

A few final, but still preliminary, thoughts

I am, on the whole, tremendously impressed with the proposed legislation. It is progressive and forward-thinking, and puts the entitlements of children before the rights of their parents. It brings the law on domestic relations in British Columbia into the twenty-first century by squarely addressing the complex issue of assisted human reproduction, the nuanced impact of family violence and the increasing prevalence of long-term unmarried relationships. It also fixes a number of existing problems by giving the provincial court the teeth to enforce its own orders and by bringing the mechanics of property division more in line with people's intuitive expectations.

It remains to be seen, however, how the new act will work in practice. It is not clear to me, for example, how the enforcement of protection orders through the Criminal Code will work. Will the police cooperate in enforcing protection orders? Will enforcement get bogged down by the much higher burden of proof that applies in criminal matters? Or, to take a different subject, how will the presumption of shared guardianship unfold? Will it work to effectively and efficiently promote children's best interests, or will it instead encourage litigation by forcing angry parents into court to get an order terminating shared guardianship?

Despite these concerns, concerns which are relatively minor in light of the astonishing breadth of the new law, I remain optimistic that this legislation represents a significant and positive advancement over the the present law. The staff of the Ministry of the Attorney General have devoted an enormous amount of time to this project over the past five years and their efforts are to be recognized and applauded.

The Attorney General's news release on the new act can be found on the provincial government website. (One small correction, though: the first Family Relations Act was introduced in 1972, not 1978.)

Follow the new label "Family Law Act" to track my future posts on the new legislation.

Update: 15 November 2011

You can listen to me talk about the new legislation with Mark Forsythe on CBC Radio's BC Almanac. Topics discussed include the new roles of mediation and arbitration, custody and access reports and views of the child reports, spousal support and the new best interests of the child test.

You can read another post of mine on the background of the Family Law Act at Courthouse Libraries BC's The Stream. This post is written for lawyers and is somewhat more technical in nature.

45 comments:

  1. JP thanks for providing such a great plain language analysis of the act.

    Shahnaz

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  2. Thanks for the overview. I am wondering how this new act will accommodate grandparents becoming guardians to their grandchildren. Specifically to the placement of children with grandparents through MCFD. There is also the question additional costs involved with raising children and the programs that have been cancelled and the ones presently available.

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  3. I am wondering your views on this situation: a common law couple is in the middle of a family law proceeding concerning the division of assets where trust claims are made.

    The action was started in the summer of 2011 but has been moving slowly. With the implementation of the new act are they now automatically subject to the presumption of 50/50 division of property like married couples? Can they amend their pleadings and completely change this call game?

    If so, is this not unfair? It changes their substantive rights part way through legal proceedings. I have looked at the sections of the act dealing with grandfathering and implementation and it seems like the answer to my question is yes but it seems so wrong. Any comments are appreciated.

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  4. I'm sorry, but I can't give legal advice in reply to comments. If you want, you can call my office at 604-689-7571 and I'll answer your question after we've done a conflict check.

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  5. It`s very interesting times we live in.The AG wants to add the rights married couples have to include common law partners....WHY??

    The law gives the right to all people or persons
    of any gender to get married....that was very important at one time in society to be married......spouse support-very interesting!!

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  6. John -Paul this is injustice-removing someones rights.The definition of "Family Violence" is a SET-UP for moving on OUT OF COURT RESOLUTION and (or)making a spouse POST BOND(wild west) for forced cooperation-SIGN HERE-comrade(STATE)
    Instead of agreeing with this definition JP..."family violence"(not criminal code violence):financial abuse(Example)or that financial abuse MAY HAPPEN!! ....is likely to occur....what a SELL OUT!!Calling someone....VIOLENT!!...you better have a good explanation?? or will see them in criminal court.This is NOT justice.This bypass the charter of rights and freedoms....lawyers??
    ...To much to handle??

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  7. I get where the author of this last post is coming from, but I expect that any misunderstandings are my fault for presenting such a complicated issue in a summary way in this post.

    First, anyone concerned about this issue needs to read the act itself; Part 9, "Protection from Family Violence," is where you'll find the discussion of protection orders and s. 1 is where you'll find the definition of "family violence."

    The definition of family violence is intentionally broad to remind judges and people in relationships that abuse isn't limited to someone being smacked around, it includes name-calling, threats, coercion, unwanted sexual activity, stalking and so forth.

    However, although "family violence" includes a lot of different behaviour, a single bad act won't be enough to get a protection order. Section 184(1) has a list of things the judge must consider before making a protection order, which include the history of abuse, any pattern of abuse, whether the abuse was connected to the separation, the presence of drug and alcohol addictions which increase the risk of abuse, and whether there are any circumstances which increase someone's vulnerability. All of these factors require the court to consider the bad act in a much bigger context.

    In terms of the protection orders the court can make, they're listed at s. 183(3). They include orders that someone not go some where, not contact someone, not stalk someone, not live in the family home and not possess weapons. The business about posting bonds or giving security doesn't apply to protection orders; protection orders aren't enforced under the Family Law Act.

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  8. I have reviewed the new Family Relations/Family Law Act at great length and have found I have no answers for the following:

    1) What if you have a 21 year old daughter who is feigning to be in University Full time by only taking the bare minimum 3 courses to make it look full time and some of these 3 courses are done at home by correspondence via computer.
    Working only part time in the summer and stating on court documents she is contributing $200 towards the University costs as well 2 weeks into the school year doesn't even show up for school or have a full (3 courses) chosen yet nor knows what courses are available.(Which should have been chosen either end of previous term or at very least Augsut prior to school starting to ensure a position in the classes available). As well living common-law with the son of her mothers common law husband's son.

    I see no mention of age of majority rules/tuition/child support after age of majority etc in these new guidelines. Or am I missing something...

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  9. A child's entitlement to child support is governed by the definition of "child" at s. 146 the new act, which is unchanged from the definition at s. 87 of the old act:

    "'Child' includes a person who is 19 years of age or older and, in relation to the parents of the person, is unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;"

    Whether an adult child continues to be entitled to support because of "illness, disability or another reason" will continued to be governed by the existing common law.

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  10. What if a common law couple separated in September 2011? Will they be subject to these new rules if one of the partners applies for spousal support in the next 12 months?

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  11. These questions have to do with the transitional provisions of the act, and you can read those through the link at the beginning of this post. These issues are very important and you should also consider getting some proper legal advice.

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  12. Protection orders will be part of civil law initiated by the family member only(tort law)
    The action or sanction of restricting the offender is the fact that the offense(s)was not charged or warranted by the police or the crown.
    Criminal peace bond protection orders are available in criminal court initiated by the crown if the offense was warranted against a family member.
    The peace bond would have criminal implications such as a criminal record if peace bond restrictions are not abided by or broken.The same as a protection order,so why not use peace bond only.
    WHY:The powers to be will have at their disposal the use a lower threshold(definition(FRA):family violence)in civil court,but they want criminal punishment if restriction of protection order are broken!!

    In effect if this legislation is implemented:

    (EX):If you break or offend(protection order)the civil law restrictions in the protection order that will be criminal and strong possibility of a criminal record!!... NO small step for a civil court sanction.
    This FRA-protection order issued in civil court will have the same weight and force of a peace bond issued in criminal court if broken or offended.Why does a protection order have the same implications of that of a peace bond.The original offenses for either were totally different in seriousness!!
    One court of law is criminal(against the people),the other is civil between two citizens and (or) family members(tort law)!!
    This will be HUGE changes in law put forth for and by the state.I hope the courts views this legislation contrary to proper process of citizens through either civil or criminal court.

    This is only my opinion,correct me please if my concerns are completely unwarranted??

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  13. I am confused about the parentage section. Does this mean that same sex couples usings a donor won't need the adoption or declaration of parentage, to ensure equal parentage, under this new Act?

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  14. I believe that this is exactly what the new act provides. Sections 23 to 33 contain a complete code for determining parentage; in fact, s. 23(1) says that these provisions determined parentage "for all purposes of the law of British Columbia."

    Sections 453 to 462 of the transitional provisions contain a number of follow up amendments to the Vital Statistics Act.

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  15. Thank you for the summary about the new legislation. At first glance, I agree that the new Act is far superior to the FRA, particularly in regard to mobility provisions and the removal of emphasis on "custody" and "access".

    My question is what is your read on the absence of a specific triggering event provision. S. 87 addresses triggering event type events, excluding pension division, but there appears to be no s. 57 declaration available. This, I think, is an effort to move away from the arbitrariness of the s. 57 declaration under the FRA, but could leave spouses exposed to massive increases in debts incurred by one spouse incurred during cohabitation. Am I missing something (aside from the court's ability to divide assets and debts unequally after trial)?

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  16. The one triggering event under the new legislation is set out at s. 81(b); it's the date of separation, and applies to both assets and debts:

    "on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt"

    I think this is a better approach than what we had under the FRA, except that it's a triggering event few people are likely to be aware of. It will also help prevent the situation you see sometimes where years go by without a triggering event leaving the court stuck dividing assets like pensions at the date of trial.

    As far as debts go, they're nicely defined in s. 86 as the debts incurred between the commencement of cohabitation and the date of separation.

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  17. What concerns me about this new Family Law Act is the fact that I, by choice, did not marry my former partner, specifically set up my finances and personal property in my name only and paid for those properties independently. The new act gives him a 50% interest simply for "being there" and does not take into consideration the fact that his contributions were minimal, if any. Had I wanted to be considered "married" I would said yes when he asked me and opted myself in to the 50/50 property division that comes along with becoming legally married.

    I can see my legal bill sky rocketing as he sits back and rubs his hands with glee.

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    1. This kind of injustice is bad enough when you are actually married, but for the govt to IMPOSE this on a person simply because they shacked up for a couple years unthinkable. No wonder marriage is a failing institution, people opted OUT of getting married to avoid this kind of situation. Now the govt has taken the next step in destroying the family by making men and women AVOID even living together over the fear of legal action or financial ruin.

      I can see the future of single women raising children on child support payments. If a man wants children, it's cheaper to simply find a suitable woman, knock her up, and start paying child support! At least that way he gets to have kids, see them regularly, and his only obligation is a monthly payment of $500 or $600. If he wants to spend more, he can, and will avoid spousal support as well as the vivisection of his property, investments, pension, and hope for a decent standard of living!!!

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  18. I encourage you to see a lawyer and enquire about the suitability of a cohabitation agreement.

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  19. Am I reading this right. If I am with my spouse living commonlaw and my spouse ex can go after my financials for child support although my spouse and I are not married or is that only if we are married.

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  20. Under s. 147, anyone who qualifies as a "parent," which includes stepparents, or a "guardian" may be obliged to pay child support. Someone obliged to pay child support is also obliged to provide financial information.

    This is essentially the arrangement we have now under the Family Relations Act.

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  21. It's my understanding that it's solely the biological parents' responsibilty to mantain support payments. Are there any circumstances when the courts would consider the income of a partner (married/common-law), when re-assessing child support and or spousal support?

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  22. Will the new law be retroactive on litigation claims that started before?

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  23. Under s. 252 of the new act, only litigation involving property or agreements concerning property that was commenced under the old act will continue under that act. The act doesn't talk about the effect of the old act on litigation involving other issues.

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  24. Why is perception allowed to play such a large part in litigation? I have been told that you could present the same case to three judges and get three entirely different outcomes. All judges work by the same laws, yet we see such drastic variations in almost identical cases. Why does society allow this, we live in an amazing country, yet we allow biased decisions run rampid. Family law is certainly not based on facts and equality for everyone. What a shame!

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  25. It's my understanding that it's solely the biological parents' responsibilty to mantain support payments. Are there any circumstances when the courts would consider the income of a partner (married or common-law), when re-assessing child support and or spousal support?

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  26. I have now spent 35K in legal fees and I haven't seen the inside of a court room. I am currently trying to have my interim access application presented to a judge, but my ex has sucessfully adjourned the court date (4) times now. Since my separation, I have requested joint parenting, but my ex contiues to deny me of this request. There's no court order in place. I only want our son to have equal access to both of his biological parents. I have paid child support since the onset of the separation. Can any of the new legislation help me with my goal.

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  27. Under s. 252 of the new act, only litigation involving property or agreements concerning property that was commenced under the old act will continue under that act. The act doesn't talk about the effect of the old act on litigation involving other issues.

    Does this apply to both broken common law relationships and marriages? If not, please describe the differences in detail.

    Thanks

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  28. I don't think that this is anything to mourn, rather I think it is part of the richness of our judicial system and common law heritage.

    Judges, like the members of juries, are people, each with their own interests, passions and inclinations. They all follow the same legal principles, and given black and white cases will all reach the same results. However, where cases rest on the interpretation of a knife-edge difference in law or the interpretation of a set of facts, individual characteristics inevitably emerge.

    This, however, should teach lawyers to be less cocky; it should remind us to taking nothing for granted; and, it should encourage us all to find ways of resolving our differences apart from litigation. This isn't a shame, its something to celebrate.

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  29. I see that I can't post comments beside the comment I mean to reply to.

    The comment above was in reply to the person who said "Why is perception allowed to play such a large part in litigation?"

    In reply to the person who is asking for information about the income of partners of parents, that income can be taken into account when the Child Support Guidelines ask the court to consider the "needs and means" of a party. For a more detailed answer, you should speak to a lawyer in your neighbourhood.

    In reply to the person who asks about s. 252, the new act is talking about litigation "under the former act," which I infer means litigation under Parts 5 and 6, which would be the portions of the act that divide property and pensions between married spouses. I don't think litigation about property between unmarried couples is caught by s. 252.

    In reply to the person with the large legal bill; you should speak to a lawyer about the impact of the new law on your case. Remember that the new law isn't going to take effect for another 12 to 18 months.

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  30. I thought certain parts of the "new law" were going to be effective immediately?

    Yes: How does this impact someone with access and property issues needing to be resolved. The litigation was registered mid-july 2011.

    No: How does this impact someone with access and property issues needing to be resolved. The litigation was registered mid-july 2011.

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  31. Some parts of the act are effective now, see my post "The Early and Unlamented Deaths of ss. 90 and 120.1" for more information.

    The parts of the act that are in force now are not going to effect any legal proceedings started prior to 24 November 2011.

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  32. If I start a supreme court action now for property in my ex common law partners name, will the old or new act apply?

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  33. The Family Relations Act does not deal with the division of property between people who are not married. The parts of the Family Law Act which deal with the division of property between married and unmarried spouses (and in fact almost all of the rest of the act) are not in force and are not likely to be in force until early 2013.

    As a result, any family law litigation started now will start under the law presently in effect in British Columbia, including the Family Relations Act and the current common law.

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  34. I wanted to post this on the Family Law Act entry but there was no comment button. My question is,.... under this act, if a couple is legally married but not living together at the time of a child's birth, what does the father have to do to ensure his right to visitation? What steps does he have to take? This new act doesn't even give guardianship to men in this situation! - CASSIE

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    1. A parent who did not live with the child and the other parent is presumed to be a guardian if the parent "regularly cares for the child." If the parent doesn't do that, he or she will have to apply to the court to be appointed as a guardian of the child and an order for parenting time (or just for just an order for contact), if the parents cannot make an agreement about these issues.

      If a man lives with the child and other parent, or doesn't live with the child but regularly cares for the child, he is presumed to be a guardian of the child.

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  35. So a woman can still have an affair. Be abusive. And still get support. Family Law is a joke.

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  36. Hi John, thanks for the great info. I have two questions for you.

    The first is in regards to pensions. I have been contributing to a defined benefit plan for 6 years now, my common law partner and I have a child and have been living together for a year. The relationship is now ending. Is she entitled to half of the total pension I have accrued so far in the 6 years? Or the amount accrued during the past year? Or will she get to start withdrawing half of the total monthly payout in 20 years when I retire? The prospect of this is terrifying to me.

    The other question is in regard to the overlap between the two sets of legislation. When I read through the details, it mentions a 2 year period, specifically that if a common law relationship ended, let's say 12 months ago, it would still be considered under the NEW law. Is this true?

    Thanks again!

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    1. As to the first question, I'm sorry, but I can't give legal advice through my blog.

      As to the second question, however, I've written about the issue in my post at http://bcfamilylawresource.blogspot.ca/2012/03/unmarried-spouses-cant-escape-family.html.

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  37. Thanks for all this good information, but it leaves me with a question:

    What happens to a long-standing (10+ years) pre-existing sole
    custody arrangement if the other (guardianship) parent petitions the court within the new framework? Is that arrangement automatically discarded in favor of the new legislation?

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    Replies
    1. That's pretty much exactly what will happen. To be clear, the court will be required to apply the new framework when the order gets to court, and if the order needs be interpreted sometime between March 18th and then, it would be interpreted under the new framework. Take a look at s. 251 of the new legislation.

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  38. Re: Anonymous, Feb 26
    Thanks for your reply. I'm still a bit unsure after reading the legislation. It states, "For the purposes of subsection (1), a party's parental responsibilities, parenting time or contact with a child under this Act are as described in the agreement or order respecting custody, guardianship and access". It sounds like it means that the old order (and old language) will be respected unless it is replaced by a new order. Not necessarily automatically discarded upon entering the court? Looking for clarification...thanks.

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    Replies
    1. An old order made under the Family Relations Act will continue unchanged under the Family Law Act.

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  39. Hi John,
    Me and my boyfriend lived together for 11 years, and we signed a cohabitation agreement with lawyers witnessed 9 years ago. In this agreement, we stated all the properties under each party name will belong to that party, no body can claim anything to the other party if we break up in the future.
    Does this agreement is valid under the new FLA ?
    Do we need to sign a new agreement now ?

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    Replies
    1. I can't answer either question would actually looking at your agreement. Oddly, you shouldn't have made that agreement then because of certain problems involving a now-repealed section of the FRA, but under the FLA it might be just fine. You need to get a proper legal opinion, and I'd encourage you to meet with a family law lawyer in your neighbourhood.

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