The BC government’s Civil Policy and Legislation Office has released two Discussion Papers on issues pertaining to BC’s Family Law Act. Their website explains that:
The Family Law Act came fully into force on March 18, 2013, replacing the Family Relations Act. The new act significantly changed the way guardianship and parenting arrangements are conceptualized within family law in British Columbia, introducing new terminology as well as a new framework for determining parents’ responsibilities towards their children. The Family Law Act also reformed the division of property, listing the types of property that are excluded from family property and generally will not be divided up after the parties separate.
Whenever new legislation is enacted, it is anticipated the courts will provide guidance on how the new legislative provisions are to be interpreted as cases are decided using the new law. There are now three years of case law interpreting the Family Law Act. Feedback received by government suggests that this is an opportune time to consider particular issues that have been raised related to guardianship and division of property under the Family Law Act.
The deadline for providing feedback is Friday, September 30, 2016. Responses can be sent by email to CPLO@gov.bc.ca or by mail to the Civil Policy and Legislation Office; Justice Services Branch; Ministry of Justice; PO Box 9222, Stn Prov Govt; Victoria, BC V8W 9J1.
The first Discussion Paper covers issues pertaining to the guardianship provisions, including “the intention underlying those provisions; how the default guardianship provisions have been interpreted in recent case law; and potential guardianship models suggested in response to concerned feedback.”
The “Guardianship Issues under the Family Law Act” Discussion Paper poses the following questions:
- Should the FLA be clarified with respect to guardianship in situations where the parents never lived together, or lived together but separated before the child was born?
- Is regular care a useful basis for establishing the guardianship status of a parent that has never lived with their child?
- If it is a useful basis, does regular care need to be more clearly defined within the FLA?
- The diagram on page eight is a visual depiction of the options and some of the questions that flow from them. Does one of these options represent a clearer, more effective way to understand and apply guardianship in the absence of an agreement or order?
The second Discussion Paper covers the presumption of advancement. It highlights many of the issues raised in the BC Court of Appeal decision V.J.F. v.S.K.W., 2016 BCCA 186, summarized on page six of the Discussion Paper as “whether excluded property always remains excluded property; the impact of applying the presumption of advancement to Part 5 of the FLA; the interpretation of ‘derived from’ in section 85 (1) (g) of the FLA; and the impact of section 104 (2) of the FLA on the operation of Part 5 of the FLA.”
The “Presumption of Advancement and Property Division under the Family Law Act” Discussion Paper poses the following questions:
- Is it more consistent with fairness between spouses for the FLA to provide that gifts of excluded property between spouses transfer beneficial ownership or to allow excluded property to always retain its excluded status? Consider the example of RRSP’s or other investments purchased with the excluded property of one spouse and registered in the name of the other spouse? Should the value of the excluded property be returned to the transferor spouse or treated as family property under Part 5 of the FLA?
- The BCCA decision in VJF suggests that a spouse who wants to rebut the presumption of advancement can enter into an agreement that sets out that property exchanged between them is not a gift. Is this a practical way for spouses to address the issue?
- Should consideration be given to amending the legislation to explicitly abolish the presumption of advancement for the purposes of Part 5 of the FLA entirely? Or, should consideration be given to adopting the approach used in other provinces?
- If the presumption is not abolished for purposes of Part 5 of the FLA, should the FLA be clarified to ensure that the presumption also applies to those non-married spouses to whom Part 5 of the FLA applies?
- The Court of Appeal decision suggests that section 85(1)(g) can be used to retain the status of excluded property only if: the test of the presumption of advancement is met; and there is property or some other benefit returning to the transferor spouse. Because section 85(1) (g) applies only between spouses, are there scenarios in which a transferor spouse will receive a benefit from the transferee spouse such that section 85(1)(g) can apply? For example, assuming a finding that the test of the presumption of advancement was met, if the facts of VJF were that the purchased property was registered in the joint names of the spouses rather than the sole name of the wife, would that difference have constituted a returning ‘benefit’ to the husband?
- The BCCA decision in VJF alludes to the usefulness of the presumption of advancement to ensure fairness between spouses. If the presumption of advancement continues to apply to matters under Part 5 of the FLA, does section 95 of the FLA provide sufficient flexibility to allow a Court to address any alleged unfairness caused by excluded property being converted to family property?
- If the presumption of advancement is specifically abolished regarding matters under Part 5 of the FLA, does section 96 of the FLA provide sufficient flexibility to allow a Court to address any alleged unfairness that results from the tracing of excluded property?
- Are there other “rights under equity or any other law” that may interact with Part 5 of the FLA which require examination?
The CBABC Family Law Working Group has prepared two surveys on these issues to assist them in drafting their submissions to the government. They are seeking input from lawyers and non-lawyers. The deadline for responding to their first survey on the presumption of advancement is this Wednesday, September 21st. The deadline for responding to their second survey on guardianship is Friday, September 30th.
Posted by Jennifer Woodruff