03 January 2014

Family Law Act Applies to Unmarried Spouses Separating before Act came into Force: Critical New Supreme Court Decision

The new year has gotten off to a very good start. On 30 December 2013, Madam Justice Hyslop released her judgment in Meservy v. Field, a concise and learned decision that unflinchingly addresses one of the most significant questions remaining on the application of the new Family Law Act: do the property provisions of the act apply to unmarried couples who separated before the act came into force on 18 March 2013? The answer to this question is very important because a "yes" would give unmarried spouses a presumptive entitlement to half the family property, while a "no" would leave all unmarried spouses separating before 18 March 2013 stuck making difficult claims under the common law.

Here's the background to the question.

Under the old Family Relations Act, only married spouses could make claims for the division of family assets. Although unmarried couples who had lived together for at least two years were "spouses" for the parts of the act about spousal support, they weren't spouses for the parts of the act about property. This is the definition from s. 1:
"spouse" means a person who
(b) except under Parts 5 and 6, lived with another person in a marriage-like relationship for a period of at least 2 years if the application under this Act is made within one year after they ceased to live together and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender,
Parts 5 and 6 were the parts dealing with property and pensions, and, under s. 56 in Part 5, a married spouse was entitled to 50% of all of the family assets:
(1) Subject to this Part and Part 6, each spouse is entitled to an interest in each family asset ... 
(2) The interest under subsection (1) is an undivided half interest in the family asset as a tenant in common.
To be clear, unmarried couples had no property rights under the old act, with a minor exception for to couples with cohabitation agreements. As a result, to make a claim to property owned only by one person, the other would have to make a complicated claim for "unjust enrichment" under the law of equity and, if proven, for restitution by a "constructive trust." This was all very complicated and rarely yielded a result anywhere near the result the couple would have had if they had been married.

The new Family Law Act made a number of huge changes to the law in British Columbia, and giving property rights to unmarried spouses was probably one of the most significant. This is how the new act defines "spouse," at s. 3:
(1) A person is a spouse for the purposes of this Act if the person
(a) is married to another person, or 
(b) has lived with another person in a marriage-like relationship, and
(i) has done so for a continuous period of at least 2 years, or 
(ii) except in Parts 5 and 6, has a child with the other person.
(2) A spouse includes a former spouse.
This is hugely important because it means that you are a "spouse" for the parts of the act about property and spousal support if you are married or unmarried but have lived together for at least two years. The only couples not shut out are unmarried couples who have lived together for less than two years.

"Spouse" also includes people who used to be spouses. In other words, married spouses who have divorced and unmarried spouses who have separated can also make a claim for the division of property under the new act. This right isn't perpetual, s. 198 imposes a two year time limit:
(2) A spouse may start a proceeding for an order under Part 5 to divide property or family debt [or under] Part 6 to divide a pension ... no later than 2 years after,
(a) in the case of spouses who were married, the date
(i) a judgment granting a divorce of the spouses is made, or 
(ii) an order is made declaring the marriage of the spouses to be a nullity, or
(b) in the case of spouses who were living in a marriage-like relationship, the date the spouses separated.
Under s. 81, anyone who falls within the definition of "spouse" and makes a claim within the two year time limit is entitled to 50% of all of the family property:
(b) 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.
Okay, so all of that is probably pretty clear. Here's where things get sticky.

The new act was passed by the legislature on 23 November 2011, and received royal assent on 24 November 2011. However, the lion's share of the act — all of the really important stuff — would not come into force until an unspecified date in the future. Although the bill had now become a law, it was not yet operative.

In the middle of June 2012, we learned that that the act would come into force on 18 March 2013.

Let's do some math. Remember how unmarried spouses who have separated can make a claim for a share of property under the Family Law Act? Remember that two year time limit? Well, it looks like an unmarried couple would have had to have separated before 18 March 2011 if they were going to be disqualified by the time limits. And of course, 18 March 2011 was more than nine months before the bill was even tabled in the legislature, and a whopping fifteen months before the effective date was announced.

As a result, it seems to me that anyone who was in an intact unmarried spousal relationship on or after 18 March 2011 would be unable to escape a potential claim under the Family Law Act. Ouch. This is what I wrote on 10 March 2012, before the effective date was announced:
"When the Family Law Act comes into force, for the purposes of the parts of the law that divide property and debt "spouse" will at that moment be defined as including:
1. anyone who is or has ever been in a married relationship, and
2. anyone who is living with another person in a marriage-like relationship and has done so for at least two years, and anyone who has ever lived with someone in a marriage-like relationship for at least two years. 
"The limit to these spouses' ability to make claims for the division of property and debt is that the claim must be made within two years of the date of separation, for unmarried spouses, or the date of divorce, for married spouses. 
"There is no twelve- to eighteen-month period to think about things. The principle that legislation is not to be interpreted as having a retroactive effect has nothing to do with it; the definition of spouse that will be in force when the new law comes into force is expressly worded so as to catch former spouses as well as people in existing spousal relationships. 
"To summarize, as long as the act comes into force on or before 24 November 2013, if you were in a spousal relationship when the Family Law Act became law, you will be subject to the property and debt provisions of the new law. Breaking up now will not save you from the effects of the new law. It's too late and was too late from the moment the bill was tabled. To take advantage of the new legislation, all a spouse needs to do is wait until the Family Law Act comes into force and then file an action in the Supreme Court."
This is what I told lawyers, in a post on the website of Courthouse Libraries BC, who were acting for unmarried couples separating after 18 March 2011 after the effective date was announced:
"Your client will be a 'spouse' as defined by the FLA when it comes into effect on 18 March 2013. Start a Supreme Court action now if there are limitations under the FRA to preserve or some other reason to commence proceedings, state your client’s claim as a claim for a property interest under the principles of unjust enrichment and amend your pleadings to claim under the FLA when it comes into effect."
If I was right in my interpretation, the consequences would be huge. Thousands of people across the province in unmarried spousal relationships after 18 March 2011 would be stuck with a law that gave them property rights, a law that didn't exist when they were together (and didn't exist on 18 March 2011), regardless of what their intentions might have been going into their relationship. As you'd likely guess, lots of people in long-term, unmarried relationships chose that kind of relationship precisely to avoid property issues.

Despite the significance of this issue, we have not yet, at least not until Justice Hyslop's excellent decision, had a case that square on addressed the problem:
  • in Trudeau v Panter, the court decided that the parties' relationship was not "marriage-like," and thus the property provisions of the new act did not apply;
  • in Reynolds v Huard, the court refused an application to amend the claim to include a claim under the Family Law Act on the basis that the parties had separated in 2003 and the claim was filed in 2008, long before the new act was a twinkle in the Attorney General's eye and well before the two year time limit (a subsequent appeal of the decisions was refused on the basis of the date of separation);
  • in Bressette v Henderson, the claim had been amended to include a claim under the new act, however because of the nature and length of the parties' relationship the court made an order under the common law rules saying that the result would have been the same under the new act, and refused to decide whether the new act should apply or not;
  • in Lee v Starinovich, the lawyers agreed the new act would not apply, and the property at issue was acquired before the parties' relationship began and thus wouldn't qualify to be shared under the new act even if the new act was applied; 
  • in Asselin v Roy, the lawyers agreed that the new act would apply, saving the court from making a decision on the issue; and,
  • in P.N.K. v C.L., the court refused an application to amend the claim brought on the morning of trial on the basis that the parties separated more than two years before the new act came into effect.
Okay, that's enough context. Let's get to Meservy v Field.

In the case the parties — who I will call "husband" and "wife" for ease of reference, even though they weren't married — had lived together from January 2009 to September 2011, a relationship what was long enough to qualify as "spouses" under the Family Law Act and ended late enough to fall within the two-year time limit.

The wife started her claim on 14 March 2013, just a few days before the new act came into effect, asking for an interest in property owned by the husband under the old common law rules. The husband wished to make a property claim under the Family Law Act, which the wife said should not apply. The parties went to a judicial case conference on 11 June 2013, where the issue of the new act was obviously raised. The Master hearing the JCC ordered that the parties make an application to determine whether the act applied by a certain date in advance of trial. This was the application heard by Justice Hyslop.

There is, of course, more to to this issue than the two-year limit, although that has proven a useful reason to turf claims resulting from unmarried relationships ending prior to 18 March 2011. The core of the problem is whether the act has a retroactive effect or not, because of the basic legal principle that legislation only has a go-forward effect. This is what I said about the issue in that March 2012 post:
"The principle that legislation is not to be interpreted as having a retroactive effect has nothing to do with it; the definition of spouse that will be in force when the new law comes into force is expressly worded so as to catch former spouses as well as people in existing spousal relationships."
Justice Hyslop started her analysis by quoting Elmer Driedger, a well known authority on the interpretation of statutes, to define her terms (important bits in bold):
"A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event."
She then notes the presumption against retroactivity I referred to above, quoting Ruth Sullivan, another authority on the issue:
"It is not disputed that there is a presumption against legislation being retroactive. For legislation to be retroactive, the legislation must be specific that it is to operate retroactively or 'by express words or by necessary implication'."
A similar rule can be found in s. 3 of the provincial Interpretation Act:
(3.1) If an Act contains a provision to the effect that the Act, or a portion of it, comes into force on a date that is earlier than the date of assent, that Act or portion referred to in the provision
(a) comes into force in accordance with the terms of the provision, and 
(b) on coming into force, is deemed to have come into force on the earlier date referred to in the provision and is retroactive to the extent necessary to give it force and effect on and after that earlier date.
The key, then, lay in whether the Family Law Act is "retroactive" or "retrospective." Justice Hyslop then refers to two passages from Pierre-André Coté, yet another authority on statutory interpretation, for a clarification of the principle and an example of its application in family law matters:
"Normal retroactive effect modifies all the legal consequences of the facts at issue, regardless of the moment when they were accomplished. However, the legislature can decide to modify only the future effects of past facts, while leaving unchanged the consequences which occurred prior to commencement. This second case is termed 'retrospective effect'." 
"For example, a new statute may convey a benefit on all married persons. Here, the date of marriage is of no significance: it is the ongoing fact of being married and not the momentary fact of marriage which results in application of the law. As long as a person’s marital status is 'married' subsequent to the commencement of the statute, they may claim the benefits created by the statute. The date of marriage is irrelevant from the standpoint of transitional law."
Here is Her Ladyship's conclusion (cites omitted):
"[45] [The wife] and [the husband] are spouses (former spouses) by operation of the definition of spouses in the FLA. This status occurred prior to the FLA coming into force. To make a claim for property rights under Part 5 of the FLA, [the husband] had to bring his claim to court within two years of the date when he and [the wife] separated. Without making his claim within the two years, he did not have the status of a spouse to make claims under Part 5 of the FLA. 
"[46] In Re Sanderson and Russell, the Ontario Court of Appeal dealt with a situation similar to that of [the parties]. The issue was the application of the Family Law Reform Act to a “common law relationship” that ended before the FLRA came into force. In Re Sanderson, the parties lived together for six years in a manner sufficient to meet the definition of spouses in the FLRA. ... In the Ontario legislation, the definition of a spouse was that they had to have cohabited together in a conjugal relationship for five years and they had to have resided together the previous year prior to making the application. 
"[47] The FLRA stated that each spouse had a duty to provide support to the other and, upon an application by a spouse, a court may order support to that spouse. ... 
"[49] Mr. Russell resisted the claim for spousal support on the basis:
…it would be unwarranted retrospective application of the Act to hold that such period can be the basis of a claim by Mrs. Sanderson.
"[50] Mr. Russell further argued that the relationship was over when the legislation came into force and that he and Mrs. Sanderson were no longer spouses. The court rejected this argument and stated:
...According to the scheme of the Act this depends upon whether she was a “spouse” at the time of her application. The appellant submits that she was not because: (1) the five years was complete before March 31, 1978, and (2) that part of [the definition] requiring continuous cohabitation within the preceding year (there is no dispute that this means preceding the application) is a limitation period and not really part of the definition of “spouse”. I do not accept this submission. While the one-year period undoubtedly serves the necessary purpose of a limitation provision it is expressly made part of the definition of spouse. Therefore, a person satisfying the requirements of [the definition] is a spouse for the purpose of [spousal support]. … Support then will serve a useful function. With this consideration in mind it seems to me that it is reasonable to regard the final clause of [the definition] as part of the substantive definition of “spouse” and not just a limitation provision. In short, the definition means what it says.
"[51] The court made reference to the policy of the FLRA which:
…is to enable certain persons who are in need to claim support. …regardless of the kind of “spouse” seeking it.
The court stated that with this policy in mind, that:
…it is reasonable to regard the final clause of [the definition of spouse] as part of the substantive definition of “spouse” and not just a limitation provision. In short, the definition means what it says.
"[52] The court concluded that the language in the FLRA had:
…all of the factual ingredients giving a person status to assert a claim for support are contained in the definition provision. This provision, of course, is not an operative one. It defines an existing status, albeit by reference to past events. When the defined term is used in the operative provisions ... it is reasonable to assume that the Legislature intended that a person having the defined status on the date the Act came into force would be entitled to the benefit of the operative provisions.
"[53] The court found that the FLRA was not retroactive because the applicant spouse became a spouse before the FLRA became law. The importance was that she was a spouse at the time she made her application. ... 
"[55] The Ontario legislation gave married and unmarried spouses obligations and rights to spousal support dependent upon their status prior to the legislation coming into force. 
"[56] On March 18, 2013, unmarried and married spouses in British Columbia were entitled to seek a division of 'property and debt' within two years from the date of their separation in the case of person’s in marriage-like relationships and the case of married people two years from the date of divorce. The two year period relates to their status of a spouse. 
"[57] As in Re Sanderson, the date of separation is not just a limitation period, but is part of the substantive definition of a spouse in British Columbia. 
"[58] I declare that the provisions of Part 5 of the FLA are applicable to this proceeding."
And there you have it. The definition of "spouse" in the Family Law Act is not subject to the presumption against retroactivity, the definition has a retrospective effect which changes the future consequences of past relationships. As a result, and pending an appeal decision to the contrary, unmarried persons who met the definition of spouse during their relationship and separated at anytime within the last two years may make claims for the division of family property, and family debt!, under the Family Law Act.

This case is a nice bookend to Smith v Anderson, a November 2013 decision of Master Bouck, which came to somewhat the same result in another application to amend a claim to include a claim under the Family Law Act. In that case, which I've written about previously, the amendment was allowed on the basis that the parties had separated within the two-year time limit; there was no reason not to allow the amendment; and, any prejudice to the other party could be rectified by a costs award. However, as to the critical question of the effect of the amendment, the Master left that to the trial judge:
"[31] ... I am unable to conclude that the claims made in the proposed amendments are bound to fail. It will be up to the trial judge to decide the whether the FLA remedies can be applied."
My thanks to my colleagues Morag MacLeod and Agnes Huang for bringing this important case to my attention.

17 comments:

  1. Many thanks JP, and to Morag and Agnes. I don't know how many of us out there have been watching and waiting for a decision on this issue but I know I sure have!
    Kay

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  2. Many thanks JP. I am a fan of your blog since I was a law student :-)
    Linda Chen of KZEL in Richmond

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    1. Thanks, Linda. That's very kind of you! Say hi to Larry for me.

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  3. Ouch! What about all of us that don't and never wanted to be married for the explicit purpose of not sharing property rights? I believe a Section 7 Charter of Rights case will need to be pursued to get this resolved and struck down. Also, I believe the judged error by not making a distinction between spousal support and property division. See Nova Scotia (Attorney General) v. Walsh 2002 SCC 83, where this is written:

    "Although the courts and legislatures have recognized the historical disadvantages suffered by unmarried cohabiting couples, where legislation has the effect of dramatically altering the legal obligations of partners, choice must be paramount. The decision to marry or not is intensely personal. Many opposite sex individuals in conjugal relationships of some permanence have chosen to avoid marriage and the legal consequences that flow from it. To ignore the differences among cohabiting couples presumes a commonality of intention and understanding that simply does not exist. This effectively nullifies the individual’s freedom to choose alternative family forms and to have that choice respected by the state."

    "The decision to live together is insufficiently indicative of an intention to contribute to and share in each other’s assets and liabilities. While many unmarried cohabitants have agreed as between themselves to live as economic partners for the duration of their relationship, it does not necessarily follow that these same persons would agree to restrict their ability to deal with their own property during the relationship or to share in all of the other’s assets and liabilities following the end of the relationship. People who marry can be said to freely accept mutual rights and obligations. A decision not to marry should be respected because it also stems from a conscious choice of the parties."

    "Although there has been growing recognition that common law spouses should be subject to the same spousal support regime as married spouses, this recognition does not extend to a division of matrimonial property, as different principles underlie the two regimes. The objective of matrimonial property division is to divide assets according to a property regime chosen by the parties, either directly by contract or indirectly by the fact of marriage, while the main objective of support is to meet the needs of spouses and their children. The support obligation is non‑ contractual and responds to situations of dependency that may occur in common law relationships."

    Thoughts?

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    1. What you've pointed to is the core of the problem.

      Walsh v. Bona, the case you're talking about, was really important in British Columbia under the old Family Relations Act, as the law in BC was pretty much the same model as the law in Nova Scotia, where the case came from. The issue in the case was whether the Nova Scotia family law legislation breached the equality provisions of the Charter of Rights and Freedoms. If the court agreed, and it didn't, the result of the case would have applied in BC as well as Nova Scotia.

      The court's conclusion, as you've pointed out, was that the Nova Scotia government was entitled to make laws that gave property rights for married spouses and none for unmarried couples, and that by choosing not to marry, unmarried couples were also choosing whether they'd be covered by those property rules or not.

      Although I disagree with some aspects of the court's decision relating to the issue of choice — because some people don't have one — on the whole it made sense. For people that know what they’re doing and make the conscious choice of one kind of relationship over another, this let you decide which property rules would apply if your relationship ended.

      However, with the change to the new Family Law Act the family property laws now apply to both married spouses and unmarried spouses. Since the law itself has changed to give unmarried couples the same property rights that are provided to married spouses, the reasoning in Walsh v. Bona no longer applies to the law in BC.

      Whether Walsh v. Bona applies or not, the other point you're making is about wanting to have the choice in the first place. Although I think that the new law has lots of benefits for lots of people, you're entirely right that the law takes the ability to choose away from you. This was the issue I was trying to underscore in my discussion about the two-year limit and the timing of the announcement about when the law was going to come into effect.

      So, what can you do? It seems to me that you, and everyone else who is in the same predicament, have three choices.

      First, you could avoid getting into the sort of relationship that would qualify you as an unmarried spouse. Unless you're a hermit or seriously anthropophobic, this option sucks.

      Second, you could leave BC and move to a province with family property laws that don't apply to unmarried couples, like Alberta. Ideally, you'd do this before your relationship starts.

      Third, you could sign a cohabitation agreement. Under the old Family Relations Act, this would have been a bad idea — for reasons I've discussed in an old post — but under the new Family Law Act it's a very good idea and is the only way you have a hope of addressing what will happen if your relationship ends. The Family Law Act will still apply to you of course, but if your agreement is fair and was fairly entered into, there's a good chance that the court will not disturb what you and your spouse have agreed to.

      Unfortunately, the new act doesn't have an opt-out clause. It's going to apply to you, as long as you meet the definition of spouse, whether you like it or not. Apart from avoiding relationships altogether or moving to a different province with more congenial laws, a cohabitation agreement gives you the best chance of mitigating the effect of the new legislation.

      Let me say one last thing. Marriage agreements and cohabitation agreements are complicated and full of legal landmines with unexpected consequences. These agreements really do need to be prepared by a family law lawyer; do-you-own-agreement kits are a spectacularly bad idea.

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    2. JP, thank you for your reply. Unfortunately, I need an option four. This issue is deeply personal to me because I am caught by this act and my freedom to choose was taken away from me. I was in a common-law relationship and we had a clear understanding as to our desire to never get married and to never co-mingle assets, etc. We did everything to keep stuff separate and I have some records to show that (e.g. bank records, credit cards, etc.) We didn't even follow or know of one another's finances, etc. We never shared expenses except for food and some furniture. My partner also had some mental health issues which basically made it impossible for her to have a intimate relationship, which she was getting help with. My hope was that one day she'd be resolved of this issues and we could have a normal relationship but until then it wasn't normal.Had anyone ever said to me, would I marry my partner the answer would have been an unequivocal, no! Oddly, we even had separate bedrooms and almost never were intimate. You may ask why I was in such a relationship, but like the judge said... it's deeply personal and sometimes some company is better than nothing and frankly as just friends it was okay. I also entered the relationship with a lot of assets. You can see where this is going... my "partner" saw the new law this year and has decided to leave and I am her money ticket now.

      I took every available action to not be in a marriage and now the government has taken away that choice. Had I been given a choice to opt-out or not be in an opt-in registry (like in Quebec) I would have taken that choice and clearly made it. Similarly, had a cohabitation agreement been an option when I go together, I would have taken that choice... but the choice at the time was to NOT have a cohabitation agreement to avoid the FRA trap. Had the FLA even been written so as to take affect going forward for any property that gained value going forward from the day of proclamation, I could have even accepted that and divided the 2 years of gains before the relationship ended... then my choice would have been to leave or continue and accept the new consequences. But as the FLA is written, all choices were eliminated.

      So... I have no choice and was never given a choice, and I think that's why a Section 7, Charter challenge may be my only option with I understand will be extremely costly. :(

      This is only just starting for me, and I haven't even got a lawyer yet... I just found your blog as I was researching about this new law.

      I may be the one who makes a Charter challenge because so much is a stake for me, the cost of a challenge may be worth it.

      Do have any pointers as to what I should do? I need to find an extremely competent lawyer that could take on the Charter challenge if need be.

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    3. Oh, I should add my former partner and I had no children,,, which was another choice we both made because we knew we were not marriage material for one another. We also, each had good stable jobs and each paid our own way for the duration of our relationship. Neither was ever dependent on one another. Ironically, today I am unemployed with poor job prospects (facing age discrimination in my field of expertise) and she is employed and just got a promotion. I have to live off of my savings which is hard because interest rates are so low.

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    4. I'm sorry, but I can't give legal advice through this blog. You're right, though, you do need a particularly skilled lawyer. Thankfully there are lots of those in BC. If you want, give me a call tomorrow at 403-216-0340 and I'll give you a bunch of names.

      You might be able to save yourself a lot of money by asking the lawyer you like best to give you a legal opinion about your options. This will cost you something to be sure, but spending the money up front on a well-researched and well-reasoned opinion may save you a lot of money in appeals down the road if your legal position turns out to be ill-advised.

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    5. Anonymous, I can empathize with you. I am in a similar position. I cohabited with someone for a few years. We broke up prior to (but less than two years prior) to the FLA coming into effect. At the time, I was not even aware of the FLA.

      During our relationship, my partner earned quite a bit less than me, and he was also unemployed for around 18 months. (He could have worked, but he was picky about what he did). I paid the mortgage and all the bills. I bought my partner clothes. I paid for the majority of our groceries and vacations etc. And so on. He could have contributed more towards our day to day living expenses, especially when he was working. I asked, and he said "sure", but never did. And I didn't push it. In other words, he had quite a cushy time.

      Our financials were quite separate, so no joint bank accounts. When it came to my home (which I purchased prior to my partner moving in), it was I who paid for the improvements and ongoing maintenance.

      Like you, I feel that my choice was taken away from me and that 'marriage' was imposed upon me. I made an active choice not to marry and we lived under the premise of "what's yours is yours, what's mine is mine". Now my partner is seeking a separation agreement, and calling for the division of family property under the FLA.

      Part of me, out of principle, wants to test how 'significantly unfair' is interpreted in the courts, particularly given the relatively short time of our relationship and what I perceived as the 'intention' behind our cohabitation.

      I feel sick to my stomach. I cannot really believe this "blanket" FLA is intended to be used for this type of outcome, and the fact the FLA is retroactive (or retrospective) just adds salt to the wound.


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  4. Also, I think a Section 2(a) Charter challenge could be made for people whose belief system rejects the notion of marriage and a shared union as a religious construct that can only be entered into by choice. E.g. atheists OR people (from Quebec) who are not happy with the Church, etc. The FLA is for all intents and purposes making a common law relationship equivalent to marriage which the FRA didn't do.

    Thoughts?


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    1. I don't think a Charter challenge is going to work, largely because marriage isn't a religious construct, it's a socioeconomic convention that has been governed by secular legislation since our earliest written legal codes, some 4,000 years ago. I agree that marriage has a religious dimension for lots of people, but at its root it is a legal relationship.

      What is legally troubling about the Family Law Act is the issue of choice, which you've also pointed to. However, I suspect that it the matter were challenged, government would probably argue that (1) it is entitled to legislate on family law matters through the property and civil rights provisions of the 1867 Constitution Act, and (2) it is giving people a choice by allowing them to make agreements that provide for different outcomes than what would be required under the legislation. The first point is a winner, but there are some problems with the second.

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    2. I get your point but as an atheist myself, would disagree, I think it's a clearly a religious construct at it's core and one of the reasons why I chose to not participate in it. Yes, governments have co-opted it to meet it's needs around social welfare of children and for women when they were in a dependent.situation; a situation that religion often (historically) directly or indirectly encouraged.

      Don't get me wrong, I think religion is great (I have one parent who is religious) and I think marriage is great for people who choose to have families (like my parents did). I even agree that when one chooses to have children, they are your children for life and you need to take care of them. I also get why the government has to help when one person is put in a situation where they are dependent on another.

      But for two people to live together, who choose to not have children or be dependent on one another, choosing to "become one" in marriage is a religious and legal construct that should only be based on free choice to make that level of commitment. Just imagine the uproar if the government sent our marriage certificates to all existing common law couples. As you say (2) is the trouble.

      My hope is that going forward more partnerships are not dependencies and instead two people of their free will choosing how to live together. I even hope going forward, BC's crazy law encourages more people entering into new relationships to create legal agreements as to how they personally want to live together is ways that are free and match their own beliefs. Too bad I wasn't given that choice. :(

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    3. Hi Anonymous. I feel your pain (in a sympathy way--I'm not in your situation). As an atheist and a family lawyer, though, I have to say JP is probably right and you probably have the causality backward. I'm pretty sure that marriage is a social construct and religions co-opted it, as religions have done with most "conservative" (i.e. "traditional") things.

      Adding to JP's comments above about the arguments the government might make that would "win" the argument about taking away your free choice: I think the property division parts of the Family Law Act would likely be saved by s. 1 (if it were found to infringe your charter rights). The governments of this country have made a consistent and determined push to make individuals responsible for supporting each other (rather than having better, broader social supports). The Family Law Act does that in part by forcing spouses to divide assets. That is important (if society isn't going to support economically disadvantaged individuals) because a broad class of citizens has traditionally been economically disadvantaged, and property division laws "fix" that. (To an extent, but only if you're lucky enough to shack up with someone less economically disadvantaged than you.)

      I'm not advising you to pursue or not pursue your challenge, but just thought another perspective might give you some ideas to mull when considering your options.

      I also strongly agree with JP: talk to a good lawyer and don't be afraid to ask around about who would be experienced enough to handle this kind of question.

      By the way, I think laws like this are a cop out on our governments' part, because it's easy to avoid voter backlash on a law that will, by definition, spread wealth but be either neutral to or beneficial to more than 50% of the people it touches. What is much harder to do is the right thing: raise taxes on the wealthy (yes, including me) and use that money to properly support the disadvantaged and programs that might give them a better chance at a healthy, prosperous life.

      But for now, the government is doing the "easy thing" and only taking cash from people who get into relationships with someone less economically fortunate than them. And relatively wealthy people like me, who are not in relationships, get a total pass on our moral obligation to actually support our fellow citizens more. Shrug. I don't make the laws, and neither do the people I voted for.

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    4. I wonder how the courts would interpret significant unfairness as it relates to religious beliefes and '(b) the terms of any agreement between the spouses' in the following situation. One of the partners is Catholic and the other is agnostic. They broke up before March 18 2013, but post March 18 2011. The Catholic partner made it clear throughout the relationship that she believes there is no committment without marriage and that she does not recognize common law relationships. Her parents think the couple are 'living in sin', but they tolerate the relationship while wishing she would find a nice Catholic boy to settle down with. She would like to marry, but he (who has been married before) is clear he is not interested in marriage and is happy cohabitating. She accepts the situation, but is sad as in her eyes this indicates a lack in commitment from her partner. He brought the majority of the assets, including the home, into the relationship and continued to pay the bulk of the mortgage plus the bills etc. A few friends suggested he get a written agreement, but he was 100% certain that should they split up, she would not be interested in his money/assets. In any case, the FRA was in effect which only applied to married couples, so he was fine...right? Wrong. The couple break up after a few years. She then files a claim under the FLA, applied retrospectively, for equal division of assets. He is surprised because he understood she did not recognize common law relationships, and felt it was clear that they would walk out of the relationship with what they brought in to it. Thoughts?

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    5. It's not really a question of theology but of whether the couple were living in a "marriage-like relationship," as far as the courts are concerned. There's an older case from the BC Court of Appeal that said the court should look at questions like: did the couple represent themselves as a committed couple?, did their family and friends think of them as a committed couple?, did they introduce themselves that way?, did they share bank account?, did they share responsibility for household debts?, did they cook for each other, and do other shared chores for each other?, and were they covered on each other's health insurance?. You get the idea. But it's got nothing to do with whether the couple are "living in sin."

      The fellow who was surprised by his ex's claim under the Family Law Act should see a lawyer as soon as possible; perhaps their situation wasn't "marriage-like"!

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  5. Quick question maybe you can help me, as tenancy board will not advise. I had a guy living with me for about 22 mos. off & on. Most of time spent trying to get rid of him, & now he is gone, locks changed etc. all his stuff is outside, but has abandoned a whole bunch of stuff on my property that I solely own, ie tools furniture vehicles & misc junk. He will stop by & selectively take items, that I assume he can sell, yesterday he took a bicycle & some speakers. I want to know how long I am legally required to store this junk for free before I get rid of it. I told him few days ago my house was sold & it all had to be gone first week of Feb. (house is not really sold) Is this ok or should it be put in writing?

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    1. That's a problem. I don't practice residential tenancy law, but it seems to me that unless you charged the guy rent, you're probably not a landlord, and so those rules wouldn't apply to you. Since you were living together for less than two years, you're not a "spouse" under the Family Law Act and have no obligations to share property. I guess the question would be something like this — a guy comes to your house and leaves some stuff there; what is your legal obligation with respect to the guy's stuff? — and I don't know off hand what the answer is. You should speak to a lawyer in your neighbourhood to see what your obligation is. I suspect that if you gave him notice and a deadline, you could throw it out, but you need to get some proper legal advice to be sure.

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