FAMILY LAW
FAMILY LAW is a term that embraces a number of areas involving the rights, responsibilities and relationships involved when people form a residential unit. Family law governs a wide range of family relationships including spouses, partners, parents, step-parents, grandparents and children.
People come to family lawyers for a variety of reasons. There need not be a dispute for partners to want to organize their affairs into a contract ( an “Agreement”) to guide them during the relationship or to define their affairs in the event of a separation.
Family issues may arise before and after people live together but. Historically, we have seen more of people who have separated and are in dispute over property, children and so on. Happily, I am seeing more and more people who come to me at the beginning of their relationship who want to sort out their affairs ahead of any potential dispute.
Interestingly, over 23 years in practice, I have not had one client come back to me seeking to enforce a Pre-nuptial, Cohabitation or Marriage Agreement. It is possible that the parties went to another lawyer but I expect that it is more likely that either the parties are still together and their openness at the commencement of the relationship was a sign of a lasting union or the Agreement smoothly guided them through the division of property and arrangement of their affairs after they separated.
In British Columbia, we now have a healthy foundation of legislation and court decisions respecting the rights of same sex couples. Multiple partner households or family units are not recognized in this province at this time.
LAW IN CANADA
1. MARRIAGE AND DIVORCE
For historical reasons, the Provincial Government is in charge of Marriage and the Federal Government is in charge of Divorce.
WHAT YOU NEED TO KNOW ABOUT CHANGES TO THE LAW IN B.C.
In March, 2013 new legislation called the Family Law Act became law in B.C. It brought some significant changes to almost every aspect of family law including enforcement of visitation orders, who is a guardian, consequences for breaching orders and most significantly the division of property for not only married couples but for people living together. Briefly, highlights are:
(1) We no longer talk of CUSTODY of children under the new Family law Act legislation. Parents who have cohabited with a child are the GUARDIANS of that child. Only a Guardian may have parental responsibilities and parenting time with a child.
(2)We no longer talk of ACCESS to children under the new Family law Act legislation. Access is now called PARENTING TIME and an ACCESS SCHEDULE is called a PARENTING SCHEDULE.
(3)SPOUSES include people living in a domestic marriage-like unit for 2 years of more and there is a PRESUMPTION of joint ownership of property that is not specifically exempted under the Act. This would include the increase in value of any family property.
(4)There are consequences for the partner who does NOT fulfill their parenting time. A parent can now ENFORCE a parenting schedule and there are consequences for the parent who fails to see the child as agreed or ordered.
(5)The court can now make CONDUCT ORDERS to help settle disputes, manage behaviours that might frustrate resolution, prevent the misuse of the court process and otherwise control the conduct of a difficult party.
(6)There are now specific consequences for the party who fails to honour the provisions of a court Order to deter such behaviour in the future.
PRENUPTIAL AGREEMENTS/ COHABITATION AGREEMENTS AND MARRIAGE AGREEMENTS
WHY HAVE AN AGREEMENT? CERTAINTY is the simple answer.
The two of you have an opportunity to design your destiny now while you are communicating well in the event that the relationship dot not last.
WHAT IS A FAMILY LAW AGREEMENT?
Family Law Agreements are contracts, plain and simple. Like any contract they are designed to preserve in writing the terms of conduct between two or more people in a CLEAR, UNEQUIVOCAL and ENFORCEABLE way by agreement and to define the rights and obligations of each with respect to the other.
In Family Law you can have an agreement before you marry or cohabit, during cohabitation and marriage or after the relationship has broken down.
The reason for an Agreement is always the same:
TO DEFINE THE PRACTICAL/FINANCIAL ASPECTS OF THE RELATIONSHIP AND ARRANGEMENTS FOR CHILDREN
Usually the focus of a pre-nuptial or cohabitation Agreement is to organize your affairs in the event that the relationship fails. Some parties actually define the roles each will assume during the course of the marriage or cohabitation such as make a monthly contribution to a joint account, pay for vehicle loans or insurance, pay private school, make a will, hold life insurance, income tax responsibilities, who will take out the garbage (no kidding) – the possibilities are numerous.
The classic Agreement defines what will happen to children, property and mutual financial obligations (including spousal support/child support/debt division and so on) on the separation of the spouses.
(1) COHABITATION
If you are living with a partner in a marriage-like relationship – that is that you are not just friends or room-mates but have a more intimate and involved relationship – for a period of two years or more, the assets and the debts that the two of you have as a couple during your cohabitation may be subject to equal division on your separation by operation of law regardless of each of your parties’ respective use or contribution to the asset or debt.
It is not possible here to explain all of the details and repercussions of the change to common law property but
PEOPLE WHO DECIDE TO LIVE TOGETHER OR WHO HAVE BEEN LIVING TOGETHER FOR 2 YEARS OR MORE
need to be informed that there has been this change to the law for cohabiting partners.
There is a category of excluded property (asset or liability) , that is, property brought into the relationship by one party but the onus is on the party claiming that the property is excluded to satisfy a court that it actually is as claimed.
Further, while the value of proved excluded property at the time of the commencement of the relationship is NOT subject to division, the amount by which the value of the excluded property has increased is subject to division;
FOR EXAMPLE:
In the past, your partner would have had to claim a trust based on how much he/she contributed to the asset before there could be any viable claim at all.
Even if you have not lived together for two years yet but you end up doing so, the value of the property that will become relevant for a property claim after two years if you separate will be the value AT THE TIME YOU COMMENCED COHABITATION. It is important to make sure that you both acknowledge the property’s value then because it is sometimes difficult to recreate market value and Property Assessments are not a reliable market place value. Similarly, if you do improvements to the property, the increase in value will be divisible under the new law.
It was almost impossible for financially disadvantaged common law partners to get a significant interest in an asset at separation before the Family Law Act came into force.
THIS LAW WILL WORK TO THE ADVANTAGE OF BOTH PARTNERS – THE ASSET-FULL AND THE ASSET- LESS AND THE ASSET- EQUAL IF THE PUBLIC BECOMES PROPERLY INFORMED.
THE HEART OF THE MATTER: CUSTOM DESIGN OF YOUR INDIVIDUAL SITUATION
THE ONLY WAY TO ENSURE THAT YOU ARE IN CONTROL OF YOUR FAMILY PROPERTY COMING IN AND GOING OUT OF A COMMON LAW SETTING IS TO DO A CO-HABITATION AGREEMENT
if you are in or contemplating a cohabitation, you should discuss what would happen to property in the repossession of each of you AT THE BEGINNING of the relationship in the event the two of you were to separate at some future time.
The cohabitation agreement is a binding contract. It must have the consent of each party. There can be no duress or undue influence brought by one on the other and an independent legal opinion for each is extremely important to make the contract binding.
COMMON OR AFTER ACQUIRED PROPERTY:
If you do not have property coming into the relationship, then you should discuss what would happen if you acquired property (pensions, land, investments, businesses, intellectual property other valuable assets)during the relationship particularly if one of you will likely put more money into asset acquisition over the years than the other.
Without defining in an Agreement what proportion each party would take away if you split up, the Family Law Act now provides that you would equally split the value of property acquired after you commenced cohabitation no matter who paid for it because unequal contribution is no longer material to asset division.
Partners should also discuss how they would divide smaller items of property (we call them chattels) acquired after the commencement of the relationship.
Sometimes parties decide that after acquired property should be owned (and hence divided up) in proportion to the contribution of each at the time of acquisition, which of course would require record keeping. Others decide to simply share in it equally. Others decided that the non-asset owning party will acquire proportional ownership in all assets over time – such as x% per year.
The important thing is to keep in mind that that without an agreement to the contrary, the increase in the value of pre-acquired or other excluded property will be subject to division.
The nice thing about a contract such as this is that you can do a custom design and create your own provisions. The two of you just have to agree and agree freely. The possibilities are endless!
SEPARATION AGREEMENTS
- Reparation Agreements are a special subset of Family Law Agreements.
- Separation Agreements are used at the end of both marriages and common law unions.
Their purpose is the same as pre-nuptial, cohabitation and marriage agreements: to create certainty and put order into your affairs after the relationship has failed and the domestic unit is dissolving. A Separation Agreement should ensure that the division of your property is fair under the law, that your financial obligations reflect the roles you each assumed during the cohabitation or marriage and that provisions for children keep the children’s interests foremost.
Because the parties are separating, it is not uncommon for there to be some communication issues between the parties which make coming to a quick agreement more difficult.
This is where having a lawyer can help and where the role of mediated resolutions really play a vital role.
KEEPING UP WITH THE TIMES
All agreements should contain a clause that says that you can update the agreement over time without rewriting the whole thing. Changes can be made by creating a variation document providing that the document is clearly identified as a change to the previous agreement, that the changes are clearly stated and that the document is witnessed in the same fashion as the original agreement. I would say that if the change is truly substantial, you each should have independent legal advice.
TO CONTRACT OR NOT TO CONTRACT
Deciding on how you would split up your property when the relationship fails is not the most romantic discussion to have at the beginning of domestic bliss but you only have to talk to someone who has had a contested battle over family property to realize the wisdom and maturity of talking about it beforehand and sorting it out on paper.
Living with someone is a very real practical reality as well as fun and companionship. It is also a business in the sense that the unit must balance its books and live within its means or there will be collapse on that front for sure.
THE MOST IMPORTANT THING IS THAT YOU MAKE AN INFORMED DECISION. AVOID SURPRISES BY TAKING CONTROL
The last thing each of you should want is that the Family Law Act of British Columbia tells you what assets are yours and what assets belong to your partner when your relationship is over,
For parties who have had the opportunity to accumulate assets and/or have children or other dependants, I encourage you to think seriously about protecting some or all of the assets if you are embarking or have embarked on a common law union. If the union endures or the dependants get on their feet, you can always revisit your agreement.
WHAT INFORMATION DO I NEED TO BRING TO INTERVIEW A LAWYER ABOUT A FAMILY LAW AGREEMENT?
It is a good idea to come to a meeting prepared. In order to give you the most professional and comprehensive advice a lawyer should have some basic information regarding your relationship and your assets.
(1) The asset/liability lists
Take two pieces of paper. One is an asset page, the other a debt page. List all of each you can remember.
(2) Documents
Collect all of the documents you can find regarding the assets and liabilities you have listed including bank statements, RE/RSP and investment statements Pension and mortgage documents, municipal assessments, incorporation documents and so on
(3)Tax Returns
The last three years’ income tax for each of you is used to determine gross annual income for support purposes
Your lawyer will need to know other information such as your date of cohabitation,marriage or intended cohabitant or marriage such as legal names, dates of birth of the adults and children , places of birth – all information that you will know by heart.
This will give your lawyer a good foundation to provide you with a legal opinion and to lay the foundation for an agreement.
DIVORCE
YOU DO NOT NEED TO BE LIVING SEPARATELY OR HAVE A FORMAL DOCUMENT OR PROCLAMATION TO BE SEPARATED FOR THE PURPOSES OF A DIVORCE
The date on which the two of you ceased living as husband and wife is your separation date. That means stopped sharing a bed, meals child care, civility. I have not yet had a spouse unable to identify the date or approximate date of separation. The parties generally know very well when the relationship ended.
You can be apply for a divorce in Canada, wherever you were married providing you can prove that you were married ( a Certificate of Marriage) and that one of you has been a Canadian resident for one year prior to the filing of the application. If there are children you will also have to prove that appropriate arrangements have been made for their care before a Divorce decree will be granted.
Divorces do not have to be contested or require court attendance. You can apply jointly with your spouse for a divorce decree.
If fall of your issues have been settled with children, you can apply for an uncontested divorce by filing the appropriate paperwork with the Court.
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