12 July 2012

A Note About the Present Effect of the New Family Law Act

I've been getting a lot of questions over the past few weeks about the status and current effect of the Family Law Act, a fair number of which have come from colleagues. Here's the deal.

The Family Law Act passed third reading on 23 November 2011 and received royal assent the next day. However, the lion's share of the new act is not presently in force. The act will come fully into force on 18 March 2013.

The parts of the act that are not in force — which is all of the important parts, really, including the parts about the care of children and the division of assets — have no legal effect in British Columbia until they come into force. Although people negotiating a private settlement can use the language and conceptual framework of the new act if they'd like, the parts that are not in effect cannot be used or relied upon by the court. For the court, it's as if those parts of the new act simply don't exist, and it would be an error of law for a judge to apply a provision of the act which is not in force in determining a current family law case.

5 comments:

  1. Thanks JP!
    You are such a great resources!

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  2. What determines when the new legislation applies; the date that a court order is applied for, or the actual court date?

    Thank you very much for this blog, it is really helpful to have this information so well laid out.

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    1. I'm afraid it's a little more complicated than that.

      1. Right now, the Family Law Act is not in force. No orders can be made under the new act until it comes into force on 18 March 2012. On that date the current act, the Family Relations Act, will be cancelled.

      2. Property claims made under the old act and claims about property agreements made while the old act was in force will continue under the old act.

      3. Unmarried spouses, who could not make property claims under the old, will be able to make property claims under the new act when it comes into force, but they'll have to update their pleadings (their Notice of Family Claim or Counterclaim) to make a claim under the new act.

      Really, then, the answer depends on the subject matter of the claim and the date the new law comes into force.

      Thanks for the kinds words.

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  3. Thanks for responding so quickly, it is really appreciated.

    So, to be more specific, if spouses are currently undergoing mediation towards getting a separation agreement (mostly to do with property claims), cannot come to an agreement, and one party applies to the court before 18 March 2013, with a court date set for after 18 March, which legislation applies?

    Thanks

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    1. I'm sorry, but I can't give legal advice or discuss particular situations. If you want, you can call my office at 604-689-7571 and after we've done a conflict check I'll answer your question.

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