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
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
Completion of Registration of Live Birth
The Vital Statistics Act, R.S.B.C. 1996, C.479 (the “Act”) was amended on October 1, 2002 and again in 2004. Prior to the amendments to the Act, the mother had the sole power upon the birth of the child to acknowledge the father on the registration of live birth. If the father was not acknowledged, he had no right to have his paternity information entered on the child’s registration of live birth or to take part in choosing the child’s surname.
As a result of the 2002 and 2004 amendments to the Act, the legislation was amended to allow a court to consider an application by the birth father to change the child’s surname to include his surname.
Section 3(6)(c) of the Act states that “if a statement completed by only one parent of the child or by a person who is not the child’s parent is registered, the chief executive officer must alter the registration of birth on application of any of the following persons:
(d) the child’s mother or father, if the application is accompanied by a copy of an order of the court declaring the child’s paternity, unless the court orders that the father’s particulars are not to be included on the child’s registration of birth.”
Section 4 (1) (c) of the Act states that the surname of a child must be registered as follows:
“(c) if both parents complete the statement under section 3, but do not agree on the child’s surname, the surname must be
(i) the parents’ surname, if they have the same surname, or
(ii) a surname consisting of both parents’ surnames hyphenated or combined in alphabetical order, if they have different surnames.”
It is now open to the court by virtue of Section 4.1 of the Act that upon an order declaring a child’s parentage that the registration of the child’s name can be changed. If an order is made in respect of a child’s surname, the court must order the child’s surname to be:
(a) the surname of either parent, or
(b) a surname consisting of both parents’ surnames hyphenated or combined in alphabetical order, in which case, section 4 (2) and (3) applies.
The legislation now provided an avenue for fathers who have been left off of the registration or the process of naming the child, to have a remedy in law in changing the surname. It should be noted however, that the court will look at the best interests of the child in determining whether the name change should occur.
Posted: March 29th, 2010 under Legislation Analysis, Vital Statistics Act RSBC 1996 C.479.
Tags: Names, Paternity, Vital Statistics
