A Reply to the Times Colonist

On 19 November 2011, the Victoria Times Colonist published a somewhat ill-informed editorial concerning the Family Law Act tabled last week in the legislature. As it happens, I like the new legislation, and I thought I'd provide a few comments in reply.

Here's the Colonist's editorial verbatim, without a word missing, in red with my comments following.

"A case can be made that the new Family Law Act, tabled Monday in the legislature, is the most far reaching social reform of our era. The massive bill completely redefines the civil structures that underpin marriage and family life."

This legislation certainly is an exercise in social policy. However, it doesn't "completely redefine" the civil structures that underpin marriage and family life; it redesigns property laws from a model shared with some of the maritime provinces to a model shared with Alberta and Ontario, and extends property rights from married couples to unmarried couples who have cohabited for at least two years. It doesn't change our recognition of unmarried spousal and parental relationships, and it doesn't change the law on child support or spousal support.

"It also rewrites the statute book. Close to 100 separate acts are being amended to accommodate the changes involved."

Most of the changes update references to "husband and wife" to "spouse" and "mother or father" to "parent" and are barely worth notice. More significant changes are only being made to the Commercial Arbitration Act, the Infants Act, the Child, Family and Community Service Act and the Vital Statistics Act, but the changes don't rewrite the basic scheme of these acts, they just accommodate them to the changes in the Family Law Act.

"In outlining the package, Attorney-General Shirley Bond has stressed two broad themes.

"The bill makes family law more child-centred. This is being done by changing the focus of custody hearings. In future, judges will be encouraged to set aside parental interests and award custody purely on the basis of what is best for the children.

"And there is a strong emphasis on mediation, rather than lawsuits, to settle divorce proceedings. These are valuable reforms, and the government is to be commended for them."

These are indeed the themes the Attorney General has chosen to emphasize. They're hardly the only important changes, they're just the ones that would fit into a sound bite for the evening news.

"The move toward mediation in particular is long overdue. Family quarrels currently occupy a quarter of all the court time in B.C. Anything that discourages divisive and wasteful litigation should be welcomed."

Actually, the move toward mediation has been underway for a couple of decades now and is hardly overdue. Mandatory mediation has been a feature of the Supreme Court civil system since 2001 and optional mediation has been available from family justice counsellors in the Provincial Court since 2003, never mind the judicial mediation offered at judicial case conferences and family case conferences.

"But important as these changes are, they are trivial compared with some real bombshells in the legislation. There are three to note:

"- At present, when a married couple separates, both are entitled to an equal share of all property. Current law draws no distinction between assets acquired during the marriage and those owned before it. All are divided equally.

"The adoption of this principle was one of the great emancipating forces of the 20th century. By protecting financially weaker spouses, who were often women, it made marriage a union of equals.

"But the new act eliminates this provision entirely. In future, property acquired prior to a marriage can be excluded if the spouse who owned it wishes. That sounds more like a Hollywood prenuptial agreement than a contract of marriage."

As I've mentioned, the current system for property division is shared by only a few other provinces. Most of Canada deals with property division on the Alberta and Ontario models which split property acquired after marriage equally and share in the growth in value of assets brought into the marriage; many people find this system of property sharing more intuitively appropriate than the current system.

The real "emancipating forces" which equalized women's property rights were the Married Women's Property Acts of the eighteenth, nineteenth and early twentieth centuries which gradually gave married women equal property rights with their unmarried sisters, and eventually equal property rights with their husbands... but this all happened long before the Family Relations Acts of 1972 and 1978. Or the Family Law Act of 2011, for that matter.

"- The act extends the division of property to common-law arrangements. Presently, couples who do not wish to marry can live together without merging their finances.

"That is being changed. If a couple cohabits for two years, upon separation either will be entitled to an equal share of whatever assets they accumulate. Pension contributions are included in the calculation.

"This is too heavy-handed. If the qualifying period were set at five years instead of two, such a policy might be justified.

"But it is unreasonable to extend marital obligations to couples who may have no intention of staying together.

"This will simply back up the court system even further, as the full force of law comes down on thousands of casual arrangements."

This too is an issue of social policy. Under the current law, unmarried spouses are excluded from the parts of the Family Relations Act that divide property between married couples. Under the existing regime, unless a couple own property together, an unmarried spouse gets nothing, no matter if the couple has been together for two years, five years or twenty.

An unmarried spouse who wishes to make a claim against property owned by the other spouse must make a difficult claim under the equitable doctrine of unjust enrichment, which may result in the spouse being entitled to some share in the property. Such claims are hard to prove, which means that they're expensive, and they rarely result in an entitlement anywhere close to what the couple would have had, had they been married.

The choice facing the government was to continue the inequity between married and unmarried relationships or to recognize the increasing frequency of long-term unmarried relationships and give unmarried spouses the rights married spouses have enjoyed since 1978.

The Colonist is right to observe that there is an element of unfairness to this for couples in existing unmarried spousal relationships. That is, however, the nature of legislative change; either it happens and hurts some people now or it never happens and hurts a lot more people as an injustice is perpetuated. Couples who wish to avoid the effect of the new act are best advised to get it together and make a property agreement now, before the new law takes legal effect.

"- While this omnibus bill deals with nearly every conceivable aspect of family law, there is one it ignores. There are no provisions to address the unequal treatment of fathers.

"It's well known that separation proceedings tilt against men when it comes to awarding child custody. In disputed cases, only 10 per cent of fathers are successful."

This is unmitigated and egregious hooey. This argument rests on an unproven allegation that fathers are treated unequally and ignores the fact that orders for joint custody have become the unwritten rule and presumptive starting point over the last fifteen years. More separated couples have joint custody of their children now than at any point in recorded legal history.

"The minister might believe her legislation deals with this concern by encouraging judges to ignore parental interests and focus on the children. But experience shows that the bias against fathers is deeply rooted in our family law system.

"In a statute several years in the drafting, this inequity should have been dealt with."

The Colonist cites no authority for this sweeping condemnation of the justice system. Surely before dropping its institutional weight behind such an allegation, the paper could point to some objective support for such a profound contention? I'm positive that such an august paper wouldn't base an unsigned editorial on mere rumour and carping innuendo.

"These are all issues upon which reasonable people can disagree. Yet there are huge issues at stake.

"Marriage is the most important wealth-creating and wealth-diffusing institution in modern society. As it stands, the new act weakens that feature of marriage, even as it foists unwanted obligations on short-term relationships."

If I understand this argument, the Colonist claims that the new legislation weakens the "wealth-creating" and "wealth-diffusing" qualities of marriage. I have no idea what this means, however if the point is that marriage is inherently wealth-creating, surely this feature is shared with the ever-increasing numbers of long-term, unmarried spousal relationships? What is it exactly which makes an unmarried spousal relationship less economically valuable than a married relationship?

The Colonist is also off base in assuming that unmarried relationships are inherently "short-term." Many of these relationships are just as long, if not longer, than married relationships, and many involve a degree of financial enmeshment that is no less significant for the fact that they are unsolemnized.

"Both parties in the legislature have agreed to pass the bill in just a few days, virtually sight unseen. That would be a serious disservice.

"Such immense changes require a full airing. The government should put this over to the new year, and allow for a proper debate."

As a matter of fact, the Attorney General's office has taken enormous pains since 2006 to expose this legislation to public comment. It is not the case that this bill emerged one morning like mushrooms after the rain; there have been extensive public consultations, with various public groups as well as with the bench and bar. This legislation is hardly a rush job, it has been five years in the making.

You can still find many of the background papers published by the Ministry in the course of the Family Relations Act Review on its website; the consultation report is an especially worthwhile read.

Update: 22 November 2011

As it turns out, two colleagues of mine have managed to preempt my reply. Read the letters to the editor of Trudi Brown, Q.C. and Mary Mouat.