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Are You Married to Your Spouse? by Cristen Gleeson
Are you married to your spouse, or do you live in a common law relationship? In British Columbia, the answer to that question largely determines the property rights and financial rights of parties when their relationship breaks down. For married spouses, comprehensive statutes such as the federal Divorce Act and the provincial Family Relations Actprovide the starting point for division of property and other issues.
Pension Division Issues in Family Law
In Jarman v. Jarman, 2011 BCSC 1155, the Claimant was the former wife of the Respondent who was a retired Air Canada Pilot. The Respondent had an interest in two pension plans with Air Canada: the Air Canada Pension Plan for Pilots, and a Supplemental Retirement Plan (the “SRP”). Air Canada had a policy that no distribution would be made directly from the SRP and no direct settlement would be possible from the SRP.
Cross Border Issues: The Hague Convention and Child Custody
In the case of Medina v. Pallett (2010) B.C.S.C. 259, the petitioner father Medina was Honduran and the respondent mother Pallett was Canadian. Together they had one child who was born in Honduras in 2005. The child was left in Honduras with the child’s grandparents while Medina and Pallett attempted to settle in Canada. By the Spring of 2008 Medina’s ability to remain in Canada remained uncertain. He therefore no longer wanted to bring the child to Canada. Pallett argued that Medina signed the child’s Canadian passport application and Medina denied doing so. Without giving notice to Medina, Pallett went to Honduras and removed the child and brought the child to Canada. Pallett then commenced divorce proceedings in Canada and sought custody of the child and child maintenance. Medina brought an application to have the child returned to Honduras.
Formal Offers to Settle in Child Custody Trials
The Rules of Court allow for the service upon the opposing party of a formal offer to settle. If the party making the formal offer to settle receives a result at trial that is equal to or more successful than the formal offer, the offering party may receive his or her costs and may even argue for double costs following the trial result.
Arrears of Child Support – Dubreuil V. Poloway
Dubreuil v. Poloway, 2010 B.C.C.A. 297. In this case following a trial in 2001, the father was found to have a Guideline income for child support of $22,000 per year. The father was ordered to pay monthly child support in the amount of $328 per month with respect to the parties’ twin children and to pay the mother 40% of the daycare expenses. The arrears of child support at trial and expenses were fixed at $6,500. The father failed to comply with payment and did not file income tax returns for 2001 through 2007 until June of 2009. The father then applied to have his child support arrears reduced based on his actual income during the past several years. The child support arrears were $16,000. The Chambers Judge found in favour of reducing the arrears to $4,000.
The Proposed Family Law Act: Changes to the Best Interests of the Child and Guardianship
Commencing in 2006 the British Columbia Ministry of Attorney General has been formulating a new Family Law Act to replace the present Family Relations Act. The proposed new legislation introduces sweeping changes to issues of child custody and guardianship, property division and spousal support, among other issues.
Whether the proposed new legislation will be passed into law remains to be seen. However, at present, it appears as though there is at least a realistic possibility that sweeping changes to family law in British Columbia of the nature proposed in the new Family Law Act will come into force in the coming years.