As many of you are aware, new family legislation has come into effect in British Columbia. The Family Law Act came into force on March 18, 2013 and replaces our old Family Relations Act. It is not a complete overhaul of everything but rather different levels of changes to various traditional issues to bring the legislation in line with our current reality. As well, the Family Law Act has legislated aspects of our family practice that were not included in the Family Relations Act – such as definition of family debt (yes, until March 18, 2013, our family law legislation had NO definition for family debt!).
I am going to briefly touch on the changes, provide a quick rundown on the three major themes of this new legislation and then address some myths that have arisen from the new legislation. I will get deeper into various issues in my future blogs – so if there is something you really want to hear about – speak up!
The FLA, as we affectionately call this new law, makes small changes to issues like child support and jurisdictional overlap of the Supreme court and Provincial Court. The areas where there are big changes, even a brand new approach, are in the care of children and the division of property. And, as stated above, the FLA has legislated concepts that we have used in our everyday practice, but weren’t included in the legislation until now – like dealing with family debt and the use of parenting co-ordinators.
There are three major themes arising from the FLA:
1. There is an emphasis on and better support for out of court resolution. Basically, all the parties involved in creating this act recognized what most of us already know – most family matters are best dealt with out of court. When you are dealing with matters that are so very personal to you, the best result will often be one that you and your ex craft yourselves. A judge knows very little about your life and is put in a position to make life changing decisions based on a limited time and limited information.
2. There is also a change in how matters that are litigated are controlled. So if court is necessary – which it sometimes is – there are enhanced processes put in place that help the court to manage the process and the litigants. While we have moved away from this idea of last minute applications served on the other side on a Friday night for court on Monday, the FLA gives the court even more discretion in how to handle litigants once they decide to use the court processes.
3. Finally, and I – like many of my colleagues – really like this one, when there is a dispute involving children, the FLA has moved the focus from the rights and priorities of the parties onto the rights and priorities of the children. This new legislation takes a very child centered approach, and hopefully will help parents to keep in the forefront of their minds that, while they may have every right to divorce each other, they have no right to use the children as weapons in the battle.
Since the FLA has come into effect, I have heard some “myths” about the legislation, some a number of times. I’m not sure where they are coming from … but they are not true … here are three common ones:
1. The FLA shortens the amount of time a party must live together from 2 years to 3 months in order to be considered “common law”.
The definition of a spouse is found in section 3 of the FLA and includes a person that is married to another person or who has lived with another person in a marriage like relationship continuously for a period of at least 2 years. So still the two year test in order to be considered common law.
There is one exception to this definition and that is when a person lives with another person and has a child with that person. They don’t have to meet the 2 year requirement. However this definition of spouse is limited specifically to the sections dealing with children and support.
2. You have to wait for 2 years after the FLA comes into force (so March 18, 2015) in order to have the sections on property division apply.
The FLA came into effect as of March 18, 2013. After March 18, 2013 all aspects of the FLA became our law in British Columbia. Any split taking place after March 18, 2013 is dealt with under the FLA.
For court actions that commenced prior to March 18, 2013 and were still ongoing – there were transition provisions to deal with this, but basically, everything other than property division became subject to the FLA as of March 18, 2013. The only issue in these cases that would be dealt with under the FRA was property division.
3. You have to be married to have the rights under the FLA.
Not true. The definition of spouse under the FLA has been expanded to include common law couples of 2 years for all purposes under the FLA and common law couples of less than 2 years if they have had a child together for other purposes such as child support and care of the child.
Hopefully that provides some food for thought. If there are other myths about the FLA that you have heard about and want debunked, let us know and we will see what we can do.