23 August 2012

Unmarried Couples, the Division of Property and the New Family Law Act

Courthouse Libraries BC has posted a short comment of mine on how the transitional provisions of the Family Law Act are going to work with unmarried couples' existing property claims. Read the post on Courthouse Libraries' blog, The Stream.

17 comments:

  1. I have question concerning future protection orders within family law in B.C.
    Section 127 or any other changes/additions to the criminal code of Canada federal or provincial jurisdiction?
    Is Section 127 of the criminal code of Canada, enforcement to be used by passed bill from the B.C. provincial legislature with respect to family law protection orders?

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    1. The Criminal Code is a federal law. Section 127 makes it a criminal offence to disobey a court order. Yes, this is the Criminal Code provision which the provincial government expects will be used to enforce protection orders under the Family Law Act.

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  2. Are protection orders and there enforcement part of family law act or the criminal code?
    ....If enforcement of protection orders within family law in B.C. are federal jurisdiction,then should a police report be part
    of an application for a protection order before going to family law court?

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    1. Protection orders are available under the Family Law Act. A police report will not be required to apply for a protection order.

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  3. If the new legislation has moved to protection orders from FRA restraining orders based on the premiss that they will provide
    better protection against violence.
    New protection orders will not allow more comprehensive police involvement right from the start to investigate if violence has occurred or the threat of violence has occurred in all situations or applications concerning the family law act of B.C. as said above in your earlier reply.
    Having a police report as a condition before apply for a protection order in family court and seems like logical step in reducing time in family law courts also.
    This legislation is also trying to accomplish such as mediation in different forms for out of court agreements and thus reducing valuable family court time.

    Please explain why this is not in the passed legislation??

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    1. The best place to look for an explanation of the government's reasoning is the white paper from 2010. It's still online and you can find it here: http://www.ag.gov.bc.ca/legislation/pdf/Family-Law-White-Paper.pdf.

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  4. Who are the lawyers that made recommendations to the B.C. government on the passed family law legislation?

    Your blog tries to answer questions giving us(the public interest)an insight as to why recommendations to government were advised.

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    1. You can read the submissions of the Canadian Bar Association, British Columbia on the white paper and on the discussion papers that lead up to the white paper here: http://www.cba.org/BC/Initiatives/main/submissions.aspx.

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  5. I have been in contact with the B.C. Civil Liberties Association(BCCLA) about the topic of criminal law with respect to the enforcement by the criminal code of Canada(section 127)as part of family law act of B.C..

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  6. Hello, I am wondering under what law (Family or Real Estate) the issue of Tenant in Common property divison would fall under.

    --Lived together for 7 years
    --Bought property together with both co-owners registered on Land Title and Mortgage
    --ex-Spouse got a vesting order(to declare that my undivided one half interest was a gift)then sold property without my knowledge.

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    1. That'll be a family law problem if the issue about the property arose in connection with the breakdown of a common-law relationship. I suppose, however, that if property was the only issue you were dealing with, you might be able to deal with it as a real property problem.

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  7. (Family or Real Estate)Thanks for the information. My next question is --The house was sold only a few months ago, however,the vesting order transferred title to one co-owner about 17 months ago as it went undefended because I did not know about it/contacted. Are there time limits on rights to defend the notion the property was not given to one co-owner as a "gift?" Thank you in advance.

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    1. I'm sorry, but I can't give legal advice in this blog. You should contact the CBA's lawyer referral service; they can hook you up with a lawyer in your neighbourhood who can give you advice about this either from a property law or a family law perspective at a rate of $25 a half-hour appointment.

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  8. Does the new Family Law Act enforce the division of property outside Canada for common-law partners??

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    1. Yes, in a sense. The act allows a BC court to divide family property outside the province in limited circumstances. However, the act doesn't give local courts any means of enforcing the division of property outside the province, unless the order dividing the property is a BC order.

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  9. Thank you for your reply. The limited circumstances are they specific or it's up to the judge to determine?? Also, when you mentioned outside province, does that mean it is enforced within Canada only or it can be enforced outside Canada. For example, if someone has a dual citizenship and his original country family law is governed by religion and does not recognise common law as a legal relationship nor accept getting married from someone who doesn’t have the same religion. Can BC Court order supersede the law in that country??

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    1. The circumstances are specific and are set out in s. 109 of the Family Law Act. "Outside the province" means in provinces and territories other than BC, and in countries other than Canada.

      BC law cannot supersede the law of another country within that country's borders.

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