Will Common-Law Mean the Same as Married Under the Proposed New Family Relations Act?
Yesterday, BC Attorney-General Mike deJong released a White Paper, which contains proposals and recommendations for a revised Family Relations Act. Family law in BC is regulated primarily by the federal Divorce Act and the provincial Family Relations Act. The Family Relations Act has not been extensively reviewed since the 1970’s. There are, naturally, hundreds of recommendations made in the White Paper, but one that is causing quite a stir is the proposed change in the treatment of property in common-law relationships.
Currently under the Family Relations Act, persons who have cohabited in a marriage-like relationship for a period of two years are deemed to be in a common-law relationship. This provides them with certain rights upon separation, although those rights are nowhere near those afforded to married couples. Primarily, persons in a common-law relationship can claim spousal support within one year of separation and of course child support in the event there are children; however, there are no rights to the other person’s property unless a claim for trust is brought by way of litigation. Trust claims are complex and fact intensive, making them expensive to litigate.
The new proposals would change the rights of common-law spouses in a significant way. Once the couple has passed the two-year cohabitation mark and become officially common-law, the parties’ property, pensions, presumptively belongs 50/50 to each of them, save and except in particular circumstances, most notably that pre-relationship property would not be subject to this division. In addition, the parties’ post-cohabitation debts, irrespective of who incurred them, would also be split 50/50.
In addition, another category of cohabitating spouses is proposed in the event a common-law couple has a child, but has yet to reach the two-year milestone. In the White Paper, this is described as a couple who have a child and are in “a marriage-like relationship of some permanence”. They would then become subject to the 50/50 division on separation. What exactly that means is not set out in the White Paper, but is sure to be litigated early on if adopted in the changes to the Family Relations Act.
What does this mean? Obviously it is too early to tell, but our initial suspicion is that many couples intent on cohabiting will be proactive and engage in written agreements contracting themselves out of these provisions. We envision that these agreements would be similar to marriage (aka pre-nuptial) agreements, in an effort to protect assets from the new provisions of the Family Relations Act.
Certainly the proposed changes to the Family Relations Act as they relate to common-law spouses indicate that the legislature intends to treat cohabiting spouses as something more akin to married spouses than in the current state of affairs.
-JMH
Posted: July 19th, 2010 under Common Law, Divorce, Legislation Analysis, Procedure.
Tags: British Columbia, Family Relations Act Reform, Legislation, Reform, White Paper
Don’t Wait Too Long, Part II
There seems to be a spate of “retroactive child maintenance for adult children” cases coming out of the courts. The seemingly immortal Hartshorne case is once more in the forefront, with the parties appearing before the B.C. Court of Appeal and (hopefully) finally resolving all of the issues arising from their ill fated 1989 marriage agreement. This case went up to the Supreme Court of Canada and then was sent back down to the Supreme Court of BC level to determine the issue of child support. Orders were made which were then appealed again by Mr. Hartshorne to the B.C. Court of Appeal. The interesting fact here is that Ms. Hartshorne, after years of having been buffeted from court to court, was trying to collect arrears of child maintenance for her eldest son. She brought that claim on in 2007 when the child was 19 years old. Mr. Hartshorne took the position that “the trial judge did not have jurisdiction to entertain the respondent’s application for retroactive and prospective support for the eldest child because the son was no longer a child of the marriage when the application was made in November 2007.” (at paragraph 67). The court decided, however, that the 2007 application for arrears was simply a resurrection of an earlier action, and because of this stated, ”I am not persuaded the trial judge lacked jurisdiction to hear the application for increased retroactive and prospective child support for the son even though he was over the age of majority at the time because the application was first made by the respondent when the son was still a child of the marriage.” [at paragraph 70] The moral is that you should at least start any application for arrears before your child stops being defined as such by the Act. Unless the Hartshornes appeal.
Posted: July 14th, 2010 under Case Analysis, Child Support.
Tags: arrears, child maintenance, Child Support, Hartshorne
Don’t Wait too Long to Apply for Retroactive Child Support
A recently case in the BC Supreme Court highlights the need for parents receiving child maintenance to be vigilant in protecting that right. In Piccini v. Dahlgren-Piccini,2010 BCSC 859, the court reiterated the fact that a parent cannot seek retroactive maintenance for an adult child. In Piccini, the payor, Mr. Piccini, had understated his income for several years. The court awarded the recipient parent, Ms. Piccini, retroactive maintenance the younger her two children, who was 17 at the date of hearing. The court found, however, that, “ One of the difficult aspects of the current application is that while the defendant seeks retroactive variation, she cannot apply for any retroactive child support for Tiffany, who was no longer a “child of the marriage” after May 2009. The defendant does not have standing to bring an application on behalf of the adult child, Tiffany, who had withdrawn from parental care” (at paragraph 3). This means that despite having incurred expenses on behalf of the child dating back prior to her reaching adulthood, the recipient parent could not obtain any relief in that regards. Had Ms. Piccini brought on her application a year earlier, the result might have been quite different. One question which was not canvassed is whether the adult child would have had standing in her own right to bring on a claim for retroactive maintenance against her father.
Posted: July 7th, 2010 under Case Analysis, Child Support.
Tags: child maintenance, Child Support, Piccini, retroactive
To Skype or not to Skype?
There has recently been a flurry of cases referencing, examining or at least mentioning Skype in the context of access and mobility. As is becoming increasingly known, Skype is software which allows people to make voice and, by way of a webcam, video calls over the internet.
Inexpensive video conferencing has been available to the public through internet based applications for years now, but it seems to only be within the past year that the courts have taken real notice. It is a truism that video conferencing is not true personal contact. It is, however, at a higher plane than email or telephone communication, in that it provides child and parent with another level information, a level which heretofore has only been available in a face to face meeting.
In British Columbia, the majority of cases which reference video conferencing do so only as an option of communication proposed by the party seeking to move or as evidence of a party’s willingness to facilitate access: See Betz v. Joyce 2009 CarswellBC 2339 British Columbia Supreme Court, 2009 where at paragraph 57, the court acknowledges the willingness of the party to engage in Skype communications.
In Novlesky v. Novlesky 2009 CarswellBC 2638 British Columbia Supreme Court, 2009, at paragraph 86, the court stated that, “Mr. Lage, the children’s grandfather, is adamant about the importance of maintaining the children’s relationship with their father. I find he and the plaintiff are genuinely committed to supporting it. The children’s computers will be equipped with Skype, a program by which both visual and verbal communication occurs on the computer.”
In only one case to date, however, has the court made a clear and unambiguous statement regarding the limitations of the medium as an access method. In C. (E.L.) v. B. (E.S.) 2009 CarswellBC 3066 British Columbia Supreme Court, 2009, the court said at paragraph 153: “If the plaintiff moves with the children there is an emotional loss which will be suffered by them. They are only ages 7 and 4. They will grow up with limited physical and emotional affection from their father. Skype is not enough. They will not be able to participate in activities or events with their father.”
Clearly, the courts are aware of what Skype is not. In Gauvin v. Gauvin 2009 CarswellBC 2520 British Columbia Supreme Court, 2009, we see the beginnings of the courts exploration of what Skype actually is. In that case at paragraph 7, Mme Justice Satanove stated that, “The plaintiff also promises to acquire Skype and to pay for regular long-distance telephone access. Obviously, electronic communication is not as desirable as in-person access, but it does allow for the child to keep in touch with her dad every day if she so wishes.”
Here, the service is equated with telephone access. They are both “electronic communication” and, unfortunately, no comment is made differentiating the benefits the court sees. Would the inability to access video conferencing have negatively affected the Plaintiff’s case?
As video conferencing technology progresses and becomes cheaper, moving from computers to smartphones, and with the emergence of 3D video, it will be interesting to see how the court positions this medium within the context of access in general.
Posted: June 30th, 2010 under Custody and Access, Mobility.
Tags: access, children, custody, Divorce, Mobility, separation, skype, video, video conference, web cam, webcam
JCC Scheduling Problems
Here’s an issue: Rule 60E(6) of the Rules of Court (Rule 7-1(8) of the Family Rules which come into effect in a few days) dictates that a Requisition and Notice of Judicial Case Conference and a copy of Parts 1, 2, 3, and 4 of a Form 89 (soon to be F8) Financial Statement must be served on a party at least 30 days before the date set for the JCC. In the event that a JCC is scheduled for only few days after service, the only recourse is to attend and complain at the very JCC that was improperly scheduled. There should be a requirement to provide proof of service or delivery, as the case may be, at least three weeks before the conference, failing which it would be struck.
Posted: June 21st, 2010 under Legislation Analysis, Procedure.
Tags: 60E(6), 7-1, Delivery, Family Law Rules, JCC, Judicial Case Conference, Rules, Rules of Court, Service
