04 March 2014

Bill Amending Family Law Act Tabled

On 3 March 2014, Minister of Justice Suzanne Anton tabled Bill 14, which, if passed, will become the Justice Statutes Amendment Act, 2014. The bill contains a number of amendments to the legislation on family law matters in British Columbia: the Adult Guardianship Act, the new Family Law Act, the Family Maintenance Enforcement Act, the Interjurisdictional Support Orders Act, the Public Guardian and Trustee Act and the new Wills, Estates and Succession Act when it comes into force. In this post, I will briefly outline the amendments to the Family Law Act.

Trust Property

Sections 11, 12 and 13 of the bill are designed to clear up certain problems relating to the status of trust property. The amendments make it clear that a spouse's beneficial interest in property, as well as property bought using the spouse's beneficial interest, is presumed to be family property to be divided between the spouses. However, if the beneficial interest concerns property held in a discretionary trust (a trust in which the distribution of property and to whom it will distributed is decided by the trustee, not the beneficiaries or the person who created the trust) and the spouse did not contribute to or create the trust, the beneficial interest is excluded from the pool of family assets to be divided.

Gifts

Section 13 of the bill would amend the act to make it clear that the only gifts that are excluded from the pool of family property to be divided are gifts from third parties. This is really important, because the way the Family Law Act currently reads, gifts between spouses are excluded from the pool of family property, and spouses often make decisions about how property is owned for tax reasons, to protect the property from creditors and to plan the distribution of their estates

Foreign Property

Sections 14, 15, 16 and 17 of the bill go some way toward cleaning up the extraordinarily incomprehensible provisions of the Family Law Act on property located outside of British Columbia that is, or might be, family property. These provisions are found in Division 6 of Part 5 and are horrifically complicated, and as a result I won't say more about it. I have written a paper on the foreign property provisions of the act which may be available from the Continuing Legal Education Society of BC.

Protection Orders

Sections 18 and 29 of the bill, would add the Criminal Code definitions of "firearm" and "weapon" to the definitions for Part 8 of the Family Law Act, the part that deals with protections orders, and clarify that a protection order can not only prohibit someone from possessing firearms and weapons, but also the licences, certificates, authorizations and whatnot relating to the firearms and weapons. A protection order can also prohibit someone from possessing "a specified object."

Consolidation of Multiple Proceedings

Section 20 of the bill makes it clear that the court can join two or more proceedings together. This will be most useful when there is a proceeding between two parents about parenting time, for example, and a relative starts a separate proceeding seeking contact with the same child. Since any order made in the second proceeding would impact on the order made in the first proceeding, a party could apply for an order that both proceedings be joined and dealt with together.

Needs of the Child Assessments

Sections 21 and 23 of the bill, would amend the Family Law Act provisions on needs of the child assessments, formerly called custody and access reports, so that only particular people with particular training and experience — to be established by regulation — are able to conduct needs of the child assessments.

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