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Living Together or Living Apart now available as an eBook

Living Together or Living  ApartOur popular, award-winning booklet (received the 2013 Apex Grand Award) Living Together or Living Apart is now available as an eBook! You can download it to any eBook reader, including Kindle, Kobo, or your smart phone, iPad, or tablet. This means you don’t need an Internet connection to access this publication, and you don’t need to make printouts to share information. Cross-references are linked and terms in bold link to the Glossary, making it easy to navigate to information your client needs. For more information about eBooks, check out Lifehack’s Ten Advantages of E-book Readers.

Living Together or Living Apart explains the basics of family law in BC. It includes information about:

  • being married or in a marriage-like relationship (also called a common-law relationship),
  • what separation and divorce mean,
  • how to work out parenting arrangements, and
  • how to sort out money matters.

It also explains your legal options and where to get help, and includes a chapter for Aboriginal families.

 

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.

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.

Help us test our self-help divorce guide and get a $50 gift card

We need your help to make our self-help divorce guide even better.

Every month our Family Law in BC website is visited by more than 30,000 people and of all the topics they look at, divorce is by far the most popular. The self-help divorce guide is the most used guide on the site. We think it’s a great resource and a helpful guide, but that doesn’t mean it can’t be improved. That’s why we’re doing usability testing on this guide.

We want to find out how people are using the guide and how we can make it better — and we need you to help us test it. The testing session involves you using the guide and giving us your thoughts on what does or doesn’t work. It takes an hour, and for participating you’ll get a $50 gift card to IGA.

We want to hear from both members of the general public (you don’t need to be going through a divorce) and advocates who help people with family law issues. If you’re interested in participating, please email us at FamilyLawWebsiteProject@lss.bc.ca for more details.

Correction to the Guide to the New BC Family Law Act

Recently we released the Guide to the New BC Family Law Act, a new booklet about the upcoming Family Law Act and the effect it will have on family law in BC. We have just been alerted to (and have corrected) a small error in that guide.

For those who downloaded the booklet before October 24, the chapter “The Divorce Act and when the language will not change” on page 6 read:

Settling issues with the FLA means you could go to either Supreme or Provincial Court, while resolving issues about property or debt using the [Divorce Act] means you can only go to Supreme Court.

However, you cannot use the Divorce Act to resolve issues of property and debt. You can only do that using the Family Law Act. We have now removed those three words.

We apologize for any confusion this may have caused.

A corrected version of the Guide is available on our website and the soon-to-be-released print version will also be correct.

Hot off the press: Our series on the new Family Law Act is now in booklet form!

As soon as the new BC Family Law Act was announced last year, there were questions. What’s new in the act? When does it come into effect? If I’m in the middle of applying for a court order, does it change anything? We were asking these questions, and so were many of you.

That’s why, beginning last February, with JP Boyd’s help, we began running a series of ELAN entries about the new law. After 8 months and 17 different entries, we’ve finally wrapped up the series.

For your convenience, we’ve combined all the entries into a single booklet, the Guide to the New BC Family Law Act. The booklet is now available for download as a pdf and will be available in print from Crown Publications by the end of this month.

In the coming months, we’ll be following up with more information and training on the Family Law Act. Stay tuned!

Changing your relationship status: Social media and family law

“I saw you tweeted that tumblr post I put on Facebook.”

A few years ago, that sentence would have been complete gibberish, and you’d think twice about sitting down beside someone who said that on a bus. Nowadays, however, you wouldn’t give it a second thought. That’s how ingrained social media has become in our everyday lives; in fact, half of all Canadians use social media.

As social media penetrates our lives, it’s no surprise that it’s having greater and greater implications under the law. A quick search of CanLII — an electronic legal research database — shows that 167 court decisions mentioned Facebook in the first half of 2012 in Canada.

While its use in criminal law has been big news before — tracking down rioters, for example — its effects on family law have been more subtle.

A survey in the UK found that Facebook was cited as a contributing factor to more than one third of divorce cases. For example, Facebook’s list of suggested friends alerted two women to the fact that they were married to the same man. Not only is social media a contributing factor to family law cases, it’s increasingly being used as evidence in these cases.

Your status updates and posts, which are often public, could affect custody, spousal support, or more. They can be used to demonstrate a number of things:

  • your state of mind;
  • proof of communication;
  • proof of time and place; and
  • evidence of actions

This isn’t necessarily limited to what is publicly visible, either; a judge in Connecticut ordered a couple to divulge their Facebook and dating site passwords during their divorce proceedings.

It’s not entirely clear how social media will continue to shape and affect family law, but apparently, it’s having an effect, so perhaps it’s best to keep an eye on what you’re posting.

The new Family Law Act — Dividing property

On November 24, 2011, BC’s new Family Law Act was introduced. It will come into effect March 18, 2013. This act will have wide-reaching effects on family law in the province. Here is a summary of its effect on property and debt division. For more information, see the act itself and our introduction to the act.

If spouses are trying to decide how to divide property, they must first figure out whether each item they own is family property or excluded property. Under the Family Law Act, spouses are either married people or people who have lived together in a marriage-like relationship for at least two years.

Excluded property includes:

  • any property that each spouse owned before the relationship started
  • gifts and inheritances given to only one spouse during the relationship
  • compensation payments made to one spouse only for personal injury or loss (unless it was meant to compensate both spouses or involves income that was lost during the relationship)
  • insurance payments made to one spouse only for personal injury or loss (unless it was meant to compensate both spouses or involves income that was lost during the relationship)

Excluded property belongs to the spouse who bought or received it. However, if the property becomes more valuable during the relationship, the increase in value is considered family property.

Family property is property that either or both spouses acquire while they are together, plus the increase in value of each spouse’s excluded property. The law assumes that spouses share this property equally.

In some cases, the court may divide excluded property or may divide family property unequally. The court might do this if it would be “significantly unfair” not to. Until the new act goes into effect and cases are decided by the courts, it isn’t completely clear exactly how the court will interpret what is significantly unfair and what isn’t.

Under the current Family Relations Act, almost all property owned by either spouse may be divided. Only married spouses can apply to divide property under this act.

A note on debts

The new act also allows the court to divide responsibility for “family debts.” Family debts are debts you take on during your relationship that:

  • are still owed on the date you separate, or
  • are taken on after your separation date to maintain family property.

These debts are shared equally unless there is an agreement or court order that says differently.

Our thanks to JP Boyd for providing the background for this series. You can find more information on the new Family Law Act, as well as other family law issues, at his BC Family Law Resource Blog.

The new Family Law Act: The Divorce Act and when the language will not change

On November 24, 2011, BC’s new Family Law Act was introduced. This act will have wide-reaching effects on family law in the province. Here is a summary of when the language used in family law will remain the same. For more information, see the Family Law Act itself and our introduction to the act, as well as the Divorce Act.

While the new Family Law Act (FLA) may have abandoned the terms “custody” and “access” in favour of less adversarial labels, that doesn’t mean that those terms have gone away.

The current BC Family Relations Act, which is being replaced by the FLA, uses the words guardianship, custody, and access when talking about parenting arrangements. The Divorce Act (DA), which governs divorce, also talks about custody and access. The new FLA will replace these terms with others: guardianship, parenting arrangements, parental responsibilities, parenting time, and contact (see our previous entry for more information). This means that the FLA and DA will be using different words for similar concepts.

The two acts overlap in some areas but not others. The DA applies to married couples only, while the FLA can apply to both married and unmarried couples. Depending on what you want to do, you may be able to address your issue with either the FLA or the DA. Solving issues with the FLA means you could go to either Supreme or Provincial Court, while using the DA allows you to go only to Supreme Court. Each court has different procedures, costs, and time frames.

When the new act goes into effect, we’ll update our online fact sheets Choosing a court and Which laws apply to your case (on the Family Law website). Stay tuned!

Our thanks to JP Boyd for providing the background for this series. You can find more information on the new Family Law Act, as well as other family law issues, at his BC Family Law Resource Blog.

In the process of a separation or divorce? Mediate BC’s distance mediation service may be able to help

Mediate BC, a not-for-profit society that offers dispute resolution services, has recently launched a distance mediation service for those who are going through a separation or divorce. The service is designed to assist family members who want to resolve differences without going to court, or who find distance or conflict between family members makes it hard to talk in person.

The service provides clients with a specially trained family mediator who can help current or former spouses resolve differences outside of court. Clients can use these private, informal services without having to meet in person or even leave home.

Some of the issues spouses can get help with include:

  • where and with whom any children will live
  • how to share the costs of raising the children
  • how to divide family assets, RRSPs, or pensions
  • what to do with the family home
  • other concerns coming out of separation and divorce.

If you think you would like to use the distance mediation service, or if you need help deciding whether it is the right choice for you, contact one of Mediate BC’s mediation advisors at:

1.855.660.8406 (call no charge in Canada and the US)
604.660.8406 (call locally in Vancouver)
604.660.4177 (fax)
mediation.advisor@mediatebc.com (email)

Find out more about the Distance Family Mediation Services program and learn more about the mediation process on Mediate BC’s website.