Lawyers Brace For Change: The Family Law Act
The Family Law Act (the “Act”) comes into force on March 18, 2013. In the coming months and years it will certainly be interesting to watch jurisprudence pertaining to the Act unfold.
Some of the most sweeping changes are contained in the provisions pertaining to common law spouses, the provisions pertaining to property division and the new duties imposed on lawyers.
There is a limitation contained in the Act under which common law spouses must commence proceedings for division of property or allocation of debt within two years of the date of separation. This provision applies retroactively such that common law spouses who separated in March of 2011 may find themselves out of time to preserve their property rights even as the Act is born. This is a dramatic shift from the present in trust claims for which there is a ten year limitation period
Additionally, common law spouses are now subject to the same property division regime as married spouses under the Act. There is a silver lining to this cloud as the enforceability of agreements generally, including cohabitation agreements, is greatly strengthened under the Act. Therefore, it is advisable for couples living common
law to enter into cohabitation agreements under the Act where they wish to preserve their assets.
The transition to the Act from the present regime will prove rather difficult to swallow for some clients who would have benefited under the Act but are caught within the old legislation. Take the 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. Under a present action, the husband could well 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. This reality will be very difficult indeed for some clients to accept.
Interestingly, although there is a list of “excluded property,” the increase in value of the excluded property after the date of cohabitation is included within family property. Much of the property division provisions under the Act will require increased reliance on valuations and, in many cases, historic valuations.
The Act does away with the various triggering events under the Family Relations Act. Rather, the sole triggering event under the Act is the date of separation. This will allow a greater measure of protection for parties facing the bankruptcy of a former spouse whereas under the Family Relations Act the parties would need to start a Court action and seek a Section 57 declaration, often with limited time and resources
Section 1 of the Act contains a very broad definition of “family violence” to include everything from physical abuse to intimidation and indirect exposure of children to family violence. The Act imposes a duty on family dispute resolution professionals (lawyers included) to assess whether family violence is present and the impact this may have on both the client’s safety and the client’s ability to negotiate. This raises a serious question as to whether or not lawyers are properly trained and skilled in order to make such assessments. In addition, many lawyers are left uncertain how to proceed in a negotiation within the ambit of the new duty where family violence is present
Under Section 37 of the Act a number of factors are enumerated pertaining to the determination of the best interests of the child. Many of these factors engage the past conduct of the parties. These provisions appear to conflict with Sections 16 and 17 of the Divorce Act, which state that the Court shall not take into consideration the past conduct of the person unless the conduct is relevant to the ability of that person to act as a parent of a child. In practice this means that very little of the broad conduct specifically included under the Act will be considered in custody and access determinations under the Divorce Act.