Okay, so there's (probably) a new law coming. Now what?

Important Update: The Family Law Act was introduced on 14 November 2011. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information.

Readers of this blog, or any local newspaper really, will know that the provincial government is planning on introducing a brand new Family Law Act sometime in 2011 that will revolutionize family law in British Columbia. I've summarized the proposed new Family Law Act in a previous post.

In September, I published another post which talked about how bill becomes a law and how a law comes into force. One of the points I was trying to make was that the Family Law Act described in the government's White Paper (PDF) doesn't have any legal effect at present and may not look anything like the Family Law Act that comes into force, and a result you shouldn't make any decisions on assumptions drawn from the White Paper.

That being said, I was recently consulted by a fellow who wanted a cohabitation agreement. (I have written at length about why cohabitation agreements are a really bad idea under the current law if the point of the agreement is supposed to be about protecting property; read my post on the subject, "Why you DON'T want a cohabitation agreement," before continuing.) This is an important problem because if the new law looks anything like the White Paper's proposal, the property interests of common-law couples and married couples are going to look very different than they do right now and, either way, the dilemma posed by s. 120.1 of the Family Relations Act will no longer exist.

So what do you do now? Frankly, I'm not sure, and any answer is going to involve an awful lot of assumptions.

If the Family Relations Act is replaced and if the new act looks like the White Paper's proposal, lots of things are going to be different:

• common-law couples will have the same property entitlements as married couples
• the value of property brought into the relationship will be excluded from sharing, as well as certain other kinds of property like court awards and inheritances
• property bought with excluded property will also be excluded from sharing
• agreements about property will only be set aside where there is a defect in the agreement or how the agreement was entered into, such as a misunderstanding about the nature of the agreement or a failure to disclose the existence of an asset

In circumstances like this, it's not clear what a marriage or cohabitation agreement about property might accomplish. Perhaps such agreements would more clearly define which assets are excluded from sharing, or address how excluded property will used during the relationship. Perhaps they would attempt to regulate how property acquired during the relationship will be paid for, or how such property would be divided at the end of the relationship.

Whatever winds up happening, the only thing we know for certain is that the Family Relations Act is the law of the land, and this is the law you need to be thinking of when planning a new relationship. We can't say for certain that the Family Relations Act will be replaced; if it's replaced, we don't know what the replacement is going to look like or when it will come into effect. We also don't know how the replacement will deal with relationships that are ongoing when it comes into effect. Will there be an exemption for existing relationships? If the new law applies to existing relationships, will it apply right away or will there be a grace period?

I think that if you are planning on a new cohabiting relationship and need to be absolutely sure about the law that will apply to your relationship, you're best off waiting until the bill passes final reading. Your second best choice would be to have an agreement not about property but an agreement to negotiate an agreement about property when the content of the new law is known.

Vanier Institute Issues Report on Canadian Families

The Ottawa-based Vanier Institute has published a study on Canadian families based on the 2006 census. According to the CBC article on the study:

• 40% of marriages now end in divorce
• one in ten people live in an unmarried, common-law relationship
• 16.5% of same-sex couples marry

I'm sure there's more to the Institute's 211-page study than the CBA has reported; read the summary to learn more. You can also visit the website of Statistics Canada and get your data right from the horse's mouth.

The Ins and Outs of Separation... Mostly the Outs

Separation, in the sense of ending a relationship, is actually rather straightforward. What's required is a decision by one person to end the relationship and the announcement of that decision to the other person, although sometimes the announcement is made nonverbally... by moving out.

This post talks about some common misunderstandings about separation and then about how to do it.

The Legal Separation

There's no such thing as a "legal separation" in British Columbia. You don't need a document to say you're separated; you don't need to see a lawyer and you don't need to see a judge to separate.

In fairness, there used to be something called a judicial separation or a divorce a mensa et thoro (a divorce from bed and board). Judicial separations were once required to relieve a married couple of their common law duty to live together and support each other, but this sort of half-divorce hasn't been available for many, many years.

Separation Agreements

Sometimes people mean a separation agreement when they talk about a "legal separation." A separation agreement is a contract which records a couple's settlement of the legal issues resulting from the end of their relationship. Although you don't need a separation agreement in order to separate, separation agreements are an excellent way to avoid court.

How to Separate

A couple is separated once either or both people decides that the relationship is over, announces that decision and terminates the marriage-like aspects of the relationship, such as sleeping together, eating together, doing household chores for the benefit of the whole family and so forth.

The decision to separation only needs to be made by one person; the consent or permission of the other person is not required. The reason why a decision is required at all is to distinguish couples who live separate and apart for reasons like employment from couples who live separate and apart because they've split up.

Staying Under the Same Roof

Most couples move out and find new places to live after they separate. Some couples continue living together after they've separated, usually because living together is so much cheaper than living apart. The court will consider couples who have split up but continue to live under the same roof to be separated looking at things like:

1. whether the couple have stopped sharing the same bed or bedroom;
2. whether the couple have stopped having sex together;
3. the extent to which each person does their own chores;
4. whether the couple have opened separate bank accounts and begun to separate their finances; and,
5. whether the couple have stopped going to social functions as a couple.

Separation and the Legal End of a Relationship

For all unmarried couples, including common-law spouses, separation is all that's required to legally end a relationship.

Married spouses, on the other hand, must get a divorce to legally end their relationship... no matter how long they've been separated. There is no such thing as an "automatic divorce." A married couple will be married until they divorce, whether they've been separated for one year or thirty.

This difference is important for unmarried couples because certain limitation dates begin to run from the date of separation, the most important of which involve the right to apply for spousal support and, although this isn't quite accurate, the right to apply for child support for children brought into the relationship.

Future Posts

A future post will discuss a perennially popular topic, sex and new relationships after separation. Separation is a surprisingly broad subject. If there's a topic you'd like me to discuss please say so in a comment to this post.

The Present Effect of the Proposed Family Law Act

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information.

A lot of people have been asking about how the proposed Family Law Act, described in the recently-released White Paper (PDF), impacts on their present legal problems. This is an important question because the proposed new law differs from the current Family Relations Act quite significantly. The answer, however, is simple: the Family Law Act doesn't have any effect at all right now, and won't for some time.

The White Paper discusses a bunch of policy options about different issues in family law, and provides a sketch of what the legislation flowing from those options might look like. The Family Law Act isn't finished yet and some policy decisions still need to be made by the Attorney General's office, and as a result it's a long way from becoming law.

Although I expect that the draft Family Law Act which eventually makes its way to the legislature will look an awful lot like the act described in the White Paper, it would be unwise in the extreme to start making plans and drafting agreements on the assumption that what we presently see is what we'll eventually get.

From Draft Legislation to Law

When the new Family Law Act is ready to go, which won't be until some time in 2011, the provincial government will table the draft act as bill in the legislature, where the bill will be subject to debate by all parties and possibly be amended as a result. Since the present government has a healthy majority, the passage of the bill is almost a sure thing.

Once the bill passes its third and final reading, the Family Law Act will become law when it receives royal assent. "Royal assent" is essentially a constitutional tip of the hat to Queen and is given by the Lieutenant Governor on the advice of (and at the timing of) the government.

Taking Effect

Under s. 3 of the Interpretation Act, the commencement date of a new act is the date on which it receives royal assent, unless the act itself says otherwise. Because it's important that people be able to plan their lives in accordance with the law in force at the time, new laws rarely take effect earlier than the date of royal asset.

Under s. 4 of the act, a new act comes into force at the beginning of the day of its commencement, and any legislation it repeals ceases to have effect at the same time. "Coming into force" means becoming the official, binding law of the land. Legislation which is "repealed" has been cancelled or voided.

What all this means is that if the new act receives royal assent on 1 October 2011, for example, the new Family Law Act will be law, and the old Family Relations Act will cease to have effect, from October 1st forward. A new Family Law Act will not have a retroactive effect unless it says it has a retroactive effect, and that's unlikely.

Existing Family Relations Act Proceedings

Section 36 of the Interpretation Act says that "every proceeding commenced under the former enactment must be continued under and in conformity with the new enactment so far as it may be done consistently with the new enactment."

Note that last bit. There are likely going to be a lot of proceedings under the old act which can't be "done consistently" with the new act (for example, claims for parental support or claims for child custody) and in cases like this the proceeding will have to continue under the old act. This is very important because s. 37 says that:

(1) The repeal of all or part of an enactment, or the repeal of an enactment and the substitution for it of another enactment, or the amendment of an enactment must not be construed to be or to involve either a declaration that the enactment was or was considered by the Legislature or other body or person who enacted it to have been previously in force, or a declaration about the previous state of the law.

(2) The amendment of an enactment must not be construed to be or to involve a declaration that the law under the enactment prior to the amendment was or was considered by the Legislature or other body or person who enacted it to have been different from the law under the enactment as amended.

In other words, you don't get to argue that you should win a point because the new law is different than the old law. The court won't be allowed to draw any conclusions about proceedings under the old law just because the new law says something different than the old law.

Summary

The Family Law Act described by the White Paper doesn't exist except as a policy proposal. It may become one of the laws of British Columbia in the future, but that will require a complete draft Family Law Act passing through the legislature and receiving royal assent. Don't make any plans on the assumption that the law which eventually comes into force will look like the White Paper's proposal.

If the Family Law Act becomes law, it will have legal effect beginning on the day it receives royal assent unless the act itself says otherwise. At present, the Family Law Act described by the White Paper has no legal effect.

Family Relations Act proceedings existing at the time the Family Law Act comes into force will continue under the new act to the extent possible. Proceedings based on any provisions of the Family Relations Act not carried on in the new act will continue under the old act.

For more information about the White Paper, click on the "White Paper" label below.

Deadlines for Comment Approaching

A couple of very important due dates are fast approaching. Feedback on the proposed provincial Family Law Act is due by 8 October 2010. Comments should be titled "Family Law White Paper" and be sent to:

Civil Policy and Legislation Office
Justice Services Branch
BC Ministry of the Attorney General
PO Box 9222 Stn. Prov. Gov't.
Victoria, BC V8W 9J1

Fax: 250-387-4525

Email: CPLOFamilyLaw@gov.bc.ca

The deadline for written submissions to the Public Commission on Legal Aid is 31 October 2010. Comments should be sent to:

Public Commission on Legal Aid
10th Floor, 845 Cambie Street
Vancouver, BC V6B 5T3

Email: legalaid@publiccommission.org

Mark these dates in your calendar!

Click on the "White Paper" label below for more information about the proposed Family Law Act; click on the "legal aid" label for links and more information about the Public Commission.

Court Services Online Drops Criminal Fees

Court Services Online has dropped the fee charged to access its full criminal proceedings database. Fees are still charged to access the databases for civil and appeal proceedings, but even the limited information you can get without charge is enormously useful.

Criminal Proceedings: Full, free access to criminal and traffic court proceedings, including the date of the alleged offence, charges laid, appearance history and case disposition.

Civil Proceedings: Access to the list of current and historic civil proceedings, including small claims, family and divorce, probate, foreclosures and bankruptcies, enforcement and motor vehicle accident proceedings. Free search results show the names of all parties, the court registry, the file number and the date the action was commenced. Further access available for a fee.

Appeal Proceedings: Access to the list of current appeals. Free search results show the names of all parties, the file number and the date the appeal was commenced and the status of the appeal as active or closed. Further access available for a fee.

Deadlines for Comment to Legal Aid Commission

The public hearing process of the Public Commission on Legal Aid will begin on 20 September and end on 12 October 2010, after stops in Vancouver, Terrace, Prince George, Williams Lake, Kamloops, Kelowna, Victoria, Cranbrook and Chilliwack.

If you would like to give your comments to the commission in person, you must complete an Expression of Interest Form and have that in to the commission by 1 September 2010. Written submissions are due by 31 October 2010 and may be submitted by email to legalaid@publiccommission.org or by post to:

Public Commission on Legal Aid
10th Floor, 845 Cambie Street
Vancouver, British Columbia
V6B 5T3