On May 1, 2012, CLETV hosted Georgialee Lang, Mark Slay and Megan Ellis, QC, some of BC’s family law leaders, in a discussion of the new Family Law Act (FLA), which passed in its Third Reading as Bill 16 and awaits to be made law. A fascinating and fulsome 90 minutes whizzed by at lightening pace as the group covered a variety of topics of concern to family practitioners. Here are some highlights.
We’re okay with a little unfair…
Panelists agree the “significant unfairness” test leaves some uncertainty, while clearly raising the threshold for a judge to vary agreements. One tip from the panel: if your client is contemplating an application to vary, it may be advisable to get it on before the FLA is made law.
Moving Made Easy?
The FLA clarifies parental mobility considerably. Court of Appeal, in R.E.Q. v. G.J.K., 2012 BCCA 146, was reluctant to embrace the primary parent’s mobility rights (for additional reading, see JP Boyd’s blog post on mobility rights and R.E.Q. v G.J.K.). Despite this, the government seems prepared to endorse such mobility rights under the FLA.
In situations of two guardians, the parent wanting to move must give the other side 60 days notice, including both a destination and a proposal for what access should look like. The other side has 30 days to object. If an objection is made, the matter goes to Court for final determination. The Court will consider if the move is being proposed in good faith and whether reasonable arrangements can be made for access by guardians and other significant persons. Interestingly, the panelists point out, the inclusion of significant persons leaves the door open for grandparents and the like to have input on a move.
Where international mobility is a concern, Mr. Slay suggests considering an order under the Divorce Act to make custodial rights clear. The Hague Convention requires a designation of a custodial parent, language that is not embraced under the FLA.
Making Misconduct Relevant
Since Leskun v. Leskun, [2006] 1 S.C.R. 920, we have had an approach to spousal support which allows us to consider misconduct providing the misconduct can be tied to the need for spousal support. The FLA gives us a codification of this, but the panel disagreed on its impact. Georgialee Lang argued that placing the principle in the legislation gives it “a little boost”, arguably making it more persuasive for judges to consider evidence of this nature.
Ms. Ellis noted that there are two possible approaches to be undertaken when looking at misconduct. The first is to consider it a factor in looking at entitlement to spousal support generally. The second would be used in circumstances where the misconduct was particularly egregious so as to constitute something tortious. In this case, parties could choose to pursue a separate claim for the tort and seek compensation accordingly.
Noticeably Absent
While the panel agreed that we are still bound by Chutter v. Chutter, 2008 BCCA 507, the Spousal Support Advisory Guidelines (SSAG) are notably absent from the FLA (whereas Child Support Guidelines are specifically referenced). The Panel discussed how this leaves it open to counsel to argue the omission is significant, and that by failing to include the SSAG, the government is communicating that they do not fully endorse them. Whether or not such an argument would succeed, it is certainly a plausible analysis.
Whose Court is it Anyway?
Mr. Slay noted an interesting distinction that has arisen between the old and new jurisdictional provisions. For the most part, sections 5-8 of the Family Relations Act, R.S.B.C. 1996, c. 128 (FRA) and sections 192-194 of the FLA read as similar. An important distinction arises in section 194 of the FLA that seems to further restrict one’s ability to bring overlapping applications in Provincial and Supreme Courts.
Mr. Slay suggested that counsel may now want to be particularly certain, when starting an action in one forum, that this is where they want to stay. For example, counsel may elect to start a without notice application for custody in Provincial Court while they prepare some of the bigger issues for a trial in the Supreme Court. Starting the custody matter in the Provincial Court, however, would exclude the Supreme Court’s jurisdiction to hear any custody matters going forward. The panel notes that counsel sometimes mistakenly think that as long as all parties agree, a change can be made. In situations where the change is prevented by legislation, it will not matter if the parties agree.
Excluded rather than Included
Of course one of the major qualities of the FLA is the elimination of the term “family asset” with the introduction of excluded property. Essentially, this means that all property is considered to be fair game for apportionment unless a party demonstrates it is “excluded property”. The panelists noted that in essence, the test has not changed; rather, the onus is now a positive one. if you want it for yourself, the obligation is on you to prove it should be excluded.
This led the panel to discuss implications for family law counsel, including the greater need to be able to prove any asset’s value, if you intend to exclude it at a later date. One of the best ways to accomplish this is to include valuations in any marriage agreements that are drafted.
Unequal Division
Section 95 of the FLA sets out factors similar to those taken into account when doing a section 65 analysis under the FRA. It provides for the possibility of an unequal division of family property and while it is not necessary to do an account for excluded property, it may be done.
The panel pointed out that the analysis with respect to property will likely be:
1. What is included as property?
2. Of this property, what should be excluded?
3. Is there a basis for an unequal division?
Moving on up
What does the new Act say about transitions? Essentially, if you have started an action under the old Family Relations Act, the action will continue under the FRA unless parties agree. Given the length of some files, the determination of which Act applies will be critical.
The panel agreed that clients will need to be advised of the significant changes on the horizon in order to make informed changes about the impact. It was even suggested that a new area of negligence claims may arise if clients feel that they were not properly informed of the impact of the new Act.
The panel suggested that counsel should reference the FLA in any agreement that is currently being drafted.
No more Trigger Finger
Mr. Slay noted with concern that the FLA contains no more provision for triggering events. Instead under section 81, the event will now be the date of separation. The panel discussed how this may lead to uncertainty in a number of circumstances including cases of bankruptcy.
It will certainly be advisable to seek agreement as to the date of separation at an early point in the litigation.
Calling it like it is
According to Ms. Ellis, an important change is the recognition family violence receives. The FLA will require lawyers to inquire into issues of family violence which, Ms. Ellis comments, will lead to a need for a lot of education for lawyers on how to elicit this sensitive information effectively. One resource newly available to lawyers is A Lawyer's Guide to Relationship Violence.
Show up or Shut Up?
For parents who interfere with the other’s parental time (or fail to show up for their own), the panel embraced new consequences under the FLA. Consequences include the potential loss of parenting time or the requirement to post security.
One Thing is Certain – Family Law is Never Boring!
With repercussions for so many areas of family law, it is difficult to know where to begin. A key takeaway might be to recognize the need for collaboration among family lawyers. The scope of change is so large, the Family Bar’s best chance for success is their ability to work together.