Family law reforms introduced in BC Legislature

family-law

November 15, 2011

The British Columbia government yesterday introduced a bill, the Family Law Act, to reform British Columbia's family laws and replace the 1978 statute, the Family Relations Act.  The Family Law Act, which is not expected to become law for approximately one year, introduces significant changes.  The changes include reforms to process, parenting regimes, support and property division as well as provisions designed to address family violence and minimize inappropriate conduct.  In general, the Act emphasizes less adversarial resolution of issues by means other than litigation, including through mediation, arbitration,  and negotiated agreements.

The Act also adopts a child centred approach intended to better serve the children's best interests on marriage breakdown, including by use of counselling and parenting coordination services, and a focus on a child's entitlement rather than parental rights.  Old legal terminology such as custody and access are replaced by terminology intended to reflect the renewed focus on the child and minimizes conflict, including language such as "parenting time" and "parenting arrangements".  The Act also imposes rules to address proposed relocation of a parent with a child, which is one of the most difficult child related issues arising on marriage breakdown. The Family Law Act  includes a requirement to give 60 days' notice of the proposed move to  any other guardian or persons with contact with the child, and imposes an obligation to show reasonable arrangements to preserve the children's relationship with the other parent as well as good faith.   The primary principle governing child related issues remains the best interests of the child. 

Support obligations are also addressed in the proposed legislation.  While stepparents have child support obligations, a natural parent has the primary obligation.   The child support obligation can terminate for a child under the age of 19, where the child has voluntarily ceased to be cared for by his or her parent, although the Act requires examination of the circumstances giving rise to the child's actions  to ensure no parental misconduct.    

The Act significantly expands the legal rights of  unmarried people who qualify as spouses as defined in the Act.   The proposed Act defines a spouse to include unmarried people who have lived in a marriage-like relationship for more than 2 years.   An unmarried spouse must seek spousal support within 2 years of the date of separation, which is a significant increase from the time requirement in the existing law.   In addition, however,  unmarried people who have had a child together have the right to seek spousal support, even if they have not lived together as spouses for 2 years. 

Significantly, the proposed Act also provides for review of spousal support payable to a legal or unmarried spouse, including on a certain date or on occurrence of a specific event.   Termination of child support may in some instances lead to an increased spousal support award.  Conduct by either party may impact the quantum or duration of spousal support, where the conduct affects a spouse's need for support or the capacity of a spouse to pay support.  The Act also provides for security for both spousal and child support payments. 

The Act also provides for issuance of protection orders where violence or risk of violence exists, and the orders are enforceable under the Criminal Code.  The court is given other powers intended to minimize inapporopriate conduct, such as posting of bonds and other forms of security and to empower the court to restrict or define the manner of communication. 

The Act also proposes significant changes to division of property between spouses in British Columbia. First, unmarried spouses as well as legally married spouses will be entitled to share in property on breakdown of the relationship.   The proposed property division regime exempts certain property from division, including inheritances and assets brought into the relationship.   Assets to be shared on breakdown of the relationship are defined as "family property" and the default position is equal division, which equal division will be departed from only where if it results in significant unfairness.  And, although the B.C. courts routinely took debts into account, the new Act expressly provides for the sharing of debts between spouses. 

The proposed Act in some ways codifies existing case law but if enacted as law, it also represents a significant change to many aspects of family law in British Columbia in addition to championing a new, less adversarial approach to resolution of issues.