by Cristen Gleeson
The Family Law Act comes into force on March 18, 2013. Some of the most sweeping changes are contained in the provisions pertaining to common law spouses, property division and the provisions pertaining to children.
Many people are unaware that there is a limitation contained in the act under which common law spouses must commence proceedings for division of property within two years of the date of separation. This provision applies retroactively such that common law spouses who separated prior to March of 2011 may find themselves out of time to pursue their property rights the instant the Act comes into force. This is a dramatic shift from the present in trust claims for which there is a 10-year limitation period.
Additionally, common law spouses are now subject to the same property division regime as married spouses under the act. Generally, under the new law, the assets a spouse brings into the relationship he or she may keep after separation. The exception to this is the increase in value of the assets over the course of the relationship. This increase in value must be divided after separation.
Enforceability of agreements, including cohabitation agreements for common law spouses, is greatly strengthened under the Act. It is strongly advisable for couples living common law to enter into cohabitation agreements under the Act to protect their assets.
The differences between the old and new law may be difficult to accept for some people. Take for example a 65-year-old pensioner who had his home fully paid for years prior to meeting his now estranged wife of eight years. The wife made no payments into the family home. If the court action is commenced now under the old law, the husband may lose half of the family home to the wife. However, had the action been commenced only a matter of months later under the Act, the husband could well have saved a substantial portion of the family home as an excluded asset.
Much of the property division provisions under the Act will require increased reliance on valuations and historic valuations. This is because the increase in value of excluded assets over the course of a relationship is divisible upon separation.
Under the Act, “family violence” will now take a strong role in determining some parenting issues. Section 1 of the Act contains a broad definition of family violence to include everything from physical abuse to intimidation and indirect exposure of children to family violence. The key factor in determining parenting time (the amount of time each parent will spend with the children) is the best interests of the child. Under Section 37 of the Act, the court must consider a variety of factors in assessing the best interests of the child including the impact of any family violence, whether the family violence is directed towards the child or another family member. This is a dramatic shift from the old law.
It remains to be seen how the courts will give shape to the various changes under the Act. It is strongly recommended to consult a lawyer pertaining to these new changes.
Cristen Gleeson is a partner and family law lawyer at the law firm of Baker Newby LLP. She works in Chilliwack and Abbotsford.