BC’ s Groundbreaking “Family Law Act” Coming Soon

Last July British Columbia’s Attorney-General Mike DeJong held a press conference to announce his Liberal government’s intention to update British Columbia’s “Family Relations Act”, an announcement that was welcomed in most quarters.

After months of meetings with stakeholders and detailed input from a blue-ribbon committee made up of government representatives and some of British Columbia’s senior family law lawyers, the recommendations for change were challenged, debated and then fine-tuned. To the government’s credit, they listened well.

Lieutenant-Governor Steven Point, in his recent Throne Speech, advised British Columbians that a new “Family Law Act” will be introduced this Fall to replace the 1979 Family Relations Act, news that many of us have been long waiting to hear.

How important is the new law to families in crisis? While tinkering with language may not seem innovative, in the area of custody and access it is significant. Many progressive lawyers already avoid words like “custody” and “access” because of their clients’ negative reaction to language that suggests one parent has ownership of the child, a “custodial” parent, and the other has “access”, a term that has become pejorative over time. The new legislation removes this language, replacing “custody” with “guardianship” and “access” with “parenting time”.

The drafters of the new law hope that the abandonment of these traditional expressions will eliminate conflict between parents based merely on semantics.

Some of the other substantive changes include:

1. New rights granted to common law spouses that will treat them the same as legally married spouses. Currently common law spouses are not entitled to apply for a division of family property upon the breakdown of their relationship. A complicated and ponderous legal concept may be invoked, but it is more expensive and provides nominal compensation. (the doctrine of unjust enrichment)

The new law will open the door for common law spouses to enjoy the same property law benefits as legally married spouses. The law will ensure that common law spouses who live in a marriage-like relationship for two years or less than two years, but have a child, will be treated like married spouses in respect of their family assets. This change will, of course, also apply to same-sex couples. British Columbia will lead the way as the first province in Canada to grant equal property rights to separating common law spouses.

2. Issues arising from reproductive technology will be covered in the new law. For example, where a child has three parents i.e. a birth mother, the birth mother’s partner and a sperm donor, each of them may have parental rights if they enter into an agreement. As well, a surrogate mother will not be forced to give up her child, just because she has signed an agreement to do so. None of these important social issues have previously been addressed in British Columbia’s family law.

3. Spousal support will not terminate upon the death of a payor spouse, but may continue and be paid from the estate of the deceased spouse. Today in British Columbia it is very difficult to convince a judge that a long-term spouse should be protected from the sudden termination of spousal support because of the payor’s death. A 60-year-old divorced woman who has no employment skills and has spent years as a stay-at-home mom can be left with no financial resources if her husband dies. This change in the law may positively impact the feminization of poverty.

4. Overall, the focus will move from a court-centered approach to out-of court resolutions. Mediation and collaborative law will continue to be highlighted. Family law arbitration will be introduced, a process where “private judges”, usually senior lawyers or retired judges, will have authority to make decisions for warring couples who wish to avoid the expense, delay, and lack of privacy intrinsic to court proceedings.

Bringing family law into the 21st century is long overdue, however, the success of the new Family Law Act will depend on lawyers and judges recognizing the policy shift that underscores this legislation. It is time to admit that a court-centred, adversarial approach simply is not working for most Canadians caught in the throes of divorce.

Lawdiva aka Georgialee Lang

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11 thoughts on “BC’ s Groundbreaking “Family Law Act” Coming Soon

  1. If ‘guardianship’ is the new term for ‘custody’ and ‘parenting time’ is the new term for ‘access’ how will the new Act affect ‘joint guardianship’ arrangements? It sounds now as though one parent is no longer a guardian and just gets ‘parenting time’? Or are both parents still joint guardians and they separate with a ‘primary’ term? This may pose some concerns.

    I agree the system needs to get in the 21st century. However, this new part of the Act leads me to think the system is going backwards when they will make a payors estate pay spousal support. Sure 20 or 30+ years ago it was very common for one spouse to support the household financially and one spouse to be a stay-at-home parent but that is rarely the case anymore and both parents are required by law if I am not mistaken to be self-sufficient from each other. I think the courts should focus on forcing parents to be self-sufficient from each other. Fact is, times have changes and women work in today’s world. And I say this because majority of the time it is the men who are the payors.

    I have honestly never heard of a 60 year old stay at home mom?? If she had kids at 40 and the kids are now 20 and she is 60 and found herself divorced at 60 I can understand addressing this accordingly, but to make a law like this is going to destroy the vast majority who have kids in their 20’s and 30’s who are parents fully capable of finding education and a career after raising kids if they didn’t already have one before having kids. What about focusing on the adult children, have the children help out financially. She raised them for 20 yrs, what child wouldn’t help the best they could. Why does the system assume it’s always the husbands responsibility? This just sounds like such a rare case and to base a law around it seems out of touch in my opinion. The system will never work with blanket laws tossed on cases that vastly differ in detail.

    I am all for out of court resolutions. I have seen far too many judges frustrated with proceeding and take that frustration out on the next family. Simply not fair on any level.

    Love your blogs BTW …

  2. I have been in a common law relationship for 38 years, but have no children with my common law spouse. Does this new law protect me regarding property benefits as would a legally married couple?

  3. Different leopard, same spots.

    Are we creating a Family Parenting Time Enforcement Act? (or is cash still considered more important for a child than parenting.)

    A rose by any other name would smell as sweet, a skunk by any other name would smell as bad.

    Does this legislation prevent one parent from arbitrarily moving the child(ren) without the consent of the other parent?

    Does this legislation provide for taking away a drivers license when parenting time is denied?

    Does this legislation provide for free enforcement of ALL court orders under this Act?

  4. Under the new legislation married people (not divorced) will also be able to take common law spouses at the same time, even without their consent. Then they have 2 spouses. The first in spouses split the “marital home” and all subsequent same time spouses split the remainder of the assets with the spouse who is in the civil marriage.
    The “subsequent ” common law spouse will not have the right to NOT become “the spouse of a person who has a spouse”.

  5. Actually, I didn’t explain that right.. the rights of the “subsequent spouses” are subject to the rights of the first in spouse(s)..so each subsequent spouse would divide marital property with the polygamist AFTER the one(s) who became the spouses first, second and so on.

  6. “1. New rights granted to common law spouses that will treat them the same as legally married spouses.”
    Not so. Legally married spouses do not have the right to legally marry again until divorced. Unmarried persons have the right to not become the spouse of a person who has a spouse.
    Under the new legislation unmarried persons do NOT have the right to NOT become the spouse of a legally married person. There is a huge difference here.

  7. You may be correct Darien. Too many double negatives for me to figure it out, however, under the Family Law Act both common law and legally married spouses will be treated the same. The current legislation does not provide property rights to common law spouses, but the new Act will.

    Appreciate your comments!

  8. However, under the new legislation, it appears a family court justice that authorizes a married person to take another simultaneous spouse, in the purported exercise of bestowing plural marital rights and obligations will themselves be liable to Canada’s criminal code against polygamy (s.293) It would have been much simpler and not allowed polygamy to slip in the backdoor of family law, to simply state in the legislation that only after divorce does a person become eligible to start the cohabitation marital countdown in time (2 years) for common law marital status. (same as marriage)

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