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family law

FLA case law, property division and unmarried couples

When the Family Law Act (FLA) was announced at the end of 2012, many people pointed out a quirk in the law that would effect unmarried couples who split up between March 18, 2011 and March 18, 2013. As a general rule, laws do not affect events from before they came into force. However, the way the FLA was written means that it applied to unmarried couples who split up as far back as March 11, 2011.

Up until now, it has been unclear whether the court system would interpret the act this way. A recent ruling, Meservy v. Field, has confirmed that this is indeed how the law will work.

The old Family Relations Act did not consider unmarried couples to be spouses under any circumstances, and so did not allow them to follow those rules for dividing property. Instead, they would have to start a Supreme Court case under the existing rules about unjust enrichment to try and divide property when they split up.

The FLA considers unmarried couples to be spouses as long as they have been living in a “marriage-like” relationship for at least two years. It also gives couples two years from the date they split up to start an application with the court to divide property. This means that unmarried couples who split up before the FLA came into force (on March 18, 2013) could file for the division of property using the FLA rules as long as they:

  • split up after March 18, 2011, and
  • it hasn’t been more than two years since the split.

Birth Registration Form updated

Baby

The Vital Statistics Agency has updated the Birth Registration Form. This is the form that tells the government:

  • who the parents are,
  • what the baby’s name is, and
  • other information that is necessary for a birth certificate.

The changes to the form are meant to allow for the new Family Law Act, which lets people make agreements as to who is or is not a parent, as well as allowing for a child to have more than two parents. With the new form, you can now specifically address cases of children conceived with egg and/or sperm donors.

However, as JP Boyd points out, the form poses a problem in cases where there is a surrogate mother.

Hot off the press: Separation Agreements: Your Right to Fairness

Image of woman

separationAgreementsSecond edition produced in collaboration with West Coast Legal Education and Action Fund (West Coast LEAF) and with financial support of Status of Women Canada to improve women’s access to justice in family law cases.

Separation Agreements: Your Right to Fairness explains in plain language the law about fair division of family property or debt when spouses separate, and what to do if you believe your agreement might be unfair. The 16-page booklet, to be printed in six languages, provides information about:

  • setting aside a separation agreement,
  • making a fair agreement,
  • preparing your financial statement for court, and
  • managing your case and working with a lawyer.

It also lists where to get free legal help, including publications, court forms, fact sheets, and other comprehensive family law resources available on the LSS Family Law in BC website.

Separation Agreements: Your Right to Fairness is now available in English in print and online, and will be available in spring 2014 in simplified and traditional Chinese, Punjabi, Spanish, and Tagalog.

Hot off the Press: How to Get a Court-Appointed Lawyer for Your Child Protection Case

Child with umbrella

How-to-Get-A-Court-Appointed-Lawyer-for-Your-Child-Protection-Case-452-lssThis attractive new publication is for people facing a complicated child protection hearing who’ve been denied legal aid but can’t afford a lawyer. The booklet explains in plain language (and appealing graphics) why and how you can make a “JG application” for a free court-appointed lawyer. The two necessary forms are included right in the booklet, clearly explained and perforated for easy removal. Also includes what to say and do in court at the JG application hearing.

Hot off the press: Relationship abuse fact sheets now available in print in Farsi (Persian)

Live Safe - End Abuse

liveSafeEndAbuseSeven fact sheets in the Live Safe — End Abuse series are now available in print in Farsi (Persian). The fact sheets cover 11 topics to inform readers about relationship abuse (family violence). We identified seven topics that would be most helpful to someone dealing with family violence. These seven fact sheets are also available in Chinese (simplified and traditional), Punjabi, and Spanish.

  • Getting Help from the Police or RCMP explains the right to call police in abusive situations, how police can help, and what happens when police arrest an abuser.
  • If Your Sponsor Abuses You describes what newcomers (immigrants) to Canada can do if abused by their sponsors or when leaving an abusive relationship.
  • Parenting explains what the terms guardian, parenting time, parental responsibilities, and contact with a child mean under the BC Family Law Act, and describes parenting orders and limits on parenting.
  • Protection Orders explains peace bonds, no contact orders, and family law protection orders, and how to apply for them.
  • Safety Planning gives details about how to make a safety plan for use at home, outside the home, and after leaving an abusive relationship.
  • The Criminal Court Process describes what happens when an abuser faces criminal charges, what it means to be a court witness, what happens at trial, and possible sentences.
  • What Is Abuse? explains that abuse can be physical, emotional, verbal, psychological, financial, or sexual, and that certain types of abuse are crimes.

All the fact sheets list community support services and legal resources. See Abuse & family violence for all the fact sheets in this series.

All fact sheets in this series are folded for display in brochure racks.

I have a question about my divorce…

Live Help

If you have a legal question, there are a lot of fantastic resources out there to help — sometimes too many. Sometimes it can be too much of a good thing. Imagine you have two kids and you’ve just decided to get divorced, you have no firsthand experience with divorce, and no idea where to get started. If you search online, you can find a lot of good information, but it can be overwhelming trying to figure out where to get started. That’s why we’re offering LiveHelp chat on the Family Law in BC website.

LiveHelp is an online chat where you can ask law students questions about family law. Visitors to the site can click the LiveHelp button on the bottom right of the homepage, and they’ll be taken to a real-time chat with a volunteer law student. It’s the law student’s job to then help them find the information they need to solve their problem.

2013-11-04 09-48-23_Family Law in British Columbia_ Legal Services Society

Regular readers of ELAN may remember that this program was launched as a pilot project at the beginning of this year. Last January, when we had two volunteers, LiveHelp was only available on a very limited basis. Right now, we have more than 20 law students from around the province participating. We’re offering this chat service Monday through Friday for at least two hours each day during regular business hours. In fact, if you stop by on Mondays and Tuesdays, students will be available for almost all of the day. If students are not available you can still leave a message.

Please stop by and give this new system a shot and tell anyone that might find something like this useful.

How an afternoon with advocates made me understand Luddites

Safety Net Canada

SafetyNetCanada_green7Every fall we hold our Provincial Advocates Conference, which trains advocates from all around the province on legal issues.

Day one of the training was just for our community partners and I had a chance spend the day with them. Community partners are organizations across BC – in 24 communities right now – that work with people who may need legal aid. As part of their day-to-day jobs, they deal with people who need legal aid or who could use our resources, so we make sure that they are trained, up-to-date, and ready to point those people in our direction.

Part of the day was spent updating all of these advocates on legal aid services and resources: updates to our websites, new publications, ways of sharing information, and more. By request, the rest of the day was spent on a really interesting, and kind of scary, presentation by BC Society of Transition Houses’ Safety Net Canada Project on the (mis)use of technology and violence against women. Many of our community partners work often support women and their children leaving abusive relationships and in recent years technology has been used more and more for harassment and stalking.

I deal with technology and the online world all the time. In fact it’s most of what I do at LSS. But some of the stuff that was brought up in that presentation absolutely floored me. I mean, I know that digital photos can contain location data about where they were taken, or that spyware can record what you type, or that you can disguise your phone number as someone else’s, but the implications of what that could mean for someone fleeing an abusive relationship never really crossed my mind. Some of it never even occurred to me; for example, I hate email forms – those text boxes that some sites make you fill out rather than just giving you an email address – but someone brought up that using them means that email addresses, say for a women’s shelter, doesn’t get stored in the address book or your email isn’t sitting in the sent folder. Two very real issues if someone is trying to track your online communications.

It’s pretty sobering, really, and I find it all a bit striking that people like our community partners have to think about this stuff every day at their jobs. I don’t want to fear monger though. The session wasn’t just about the dangers of technology. It was also about mitigating those dangers to protect yourself, and using technology to your advantage. While I don’t think I’ll be deleting my Twitter account any time soon, I can definitely start to see where Luddites are coming from.

I can’t speak for our community partners, but I had an eye opening afternoon that day. If the last three days were as interesting as the first, then I think everyone will walk away prepared to do a better job helping and advocating for their clients.

–Nate Prosser, Online Outreach Coordinator at LSS

Civil Marriage Act amended to allow for non-resident divorces

The Civil Marriage Act has been amended to address a legal oversight that stopped same-sex couples who were married in Canada but who did not live in Canada from being able to get divorced. This issue made headlines last year when a couple, originally from Florida, were denied a divorce in Ontario.

In 2005, the Civil Marriage Act came into force and gave same-sex couples the right to marry in Canada. Soon after that, the definition of spouse in the Divorce Act was amended to allow same-sex couples to divorce. The issue arises though from the spotty legality of same-sex marriages across the world. Under the Divorce Act, you can only file for divorce if you have lived in the province in which you are starting the divorce for at least one year.

This led to a situation where a couple, in this case from Florida where same-sex marriage is not legal, came to Canada and got married but then could not get divorced. Since same-sex marriage is not recognized in Florida and since the state didn’t consider them married, they could not get divorced there. Because they weren’t residents of Canada, they could not get divorced here either.

This new amendment allows for non-residents who were married in Canada to apply for a divorce under the Civil Marriage Act as long as:

  • they have been separated for at least one year,
  • neither of them are living in Canada when the application is made, and
  • they both live in a place where a divorce cannot be granted because their marriage is not considered valid.

JP Boyd, a family law lawyer, points out on his blog that there are two things to note about divorces under the Civil Marriage Act:

  1. The Divorce Act does not apply to divorces granted under the Civil Marriage Act, which means that someone getting a divorce under the Civil Marriage Act can’t apply for custody or access to any children, or for child or spousal support.
  2. While the divorce is legal in Canada, it may or may not be considered legal where you’re from depending on the law there.

Living Together or Living Apart wins an Apex award!

2013-03-22 11-03-45_Living-Together-or-Living-Apart-engWe’re proud to announce that our booklet Living Together or Living Apart has won the Grand Award from Apex!

The APEX Awards are an annual competition for publication excellence that judges publications on the basis of graphic design, editorial content, and overall communications excellence. The Grand Award is given out to honour outstanding work and was awarded to LSS in the one-of-a-kind publication category.

Congratulations to the publications team for this win and in particular Winnifred Assmann, the editor, Andrea Rodgers, the designer, and Alex Peel, our publications development coordinator, who organized the community consultation. We’d also like to thank everyone else who was involved in the production of this book, as well as the dozens of people from around the province who helped us review and refine the publication.

apex2013Living Together or Living Apart explains the basics of family law in BC, including information about being married, common-law relationships, what separation and divorce mean, how to work out parenting arrangements, and what to do about money. It is available online and in print in both English and French.

Production of Living Together or Living Apart was funded, in part, by a grant from the Law Foundation of BC.

Do we have to go to court if we break up?

StayingOutOfCourtScreenshotBreaking up is unpleasant, but it doesn’t have to be a long drawn-out court battle. The new Family Law Act that went into effect March 18, 2013 was intended to steer people towards out-of-court solutions for their family law issues wherever possible.

We have lots of material on the Family Law in BC website to support out-of-court solutions. Recently, we added a new tab at the top of every screen to help users find that material more easily. Check it out next time you’re on the site. And send us an email to let us know what you think and whether you’d like more.