New Family Law Act Expected March 18,2013

New Family Law

The Family Relations act will be replaced by the new Family Law act, on or about March 18 next.While disinherited.com does not venture into matrimonial disputes, the fact is that the laws of family and estates are increasingly becoming interwoven, and not necessarily smoothly at all.

In any event, it is important to keep an eye on family law developments, so this blog is intened only as the merest of an oversight of some of the changes to look for in family law, very soon.

I apologize for the loose format, but it is a composite of my own notes from a seminar on the topic.

It is complicated legislation that has taken years to develop, and may not in fact be quite yet finished in the details.

 

New act has the notion of ” family property” which is everything unless “excluded property”, with the notion of former “family purpose use” no longer being the test.

Property rights are extended to common  law couples after 2 years

Family debt is defined and can be re- apportioned between the spouses- ie one spouse might be ordered to pay all or some of the other spouses debts

Spouse is defined as either – married, or common law for 2 years

But a party can  get spousal and child support if they live together less than 2 years, if they have a child

“Family property” is defined

On date of separation what you own is family property unless it is excluded property

Same with property acquired after separation if acquired from a family property

Family property includes a share in a limited company

The property you bring into a marriage is excluded property,  but the amount of any increase in value in the property, makes it  family property

S85 sets out excluded property:

Gifts

Inheritances, but not their growth in value

Property owned  before the relationship

Non property related insurance

Discretionary trusts

Property traceable back to excluded property

 

Excluded property increase in value is divided

If the property is outside BC, then the property can’t effectively be divided

 

Excluded property can be divided if it is significantly unfair not to divide it after consideration of the duration of the relationship and the  direct contribution ( not indirect contribution any longer)

Can divide family debt and assets disproportionately, but now requires it to be significantly unfair

Valuation date is s 87 date agreement signed, or date of hearing

Date of separation can be important as it is the triggering event and what date is the actual date

Marriage agreements – can still opt out and court may set aside agreements for failure to disclose assets, debts, or other defect in the process

 

The other is significant unfairness due to length of time, intention of parties to achieve certainty, the degree to which the spouses relied upon the agreement

 

Make sure the other side gets good legal advice as there is a risk that the spouse can later argue they did not understand it

 

Court can order that spousal and child support can survive death and an order can be made against the estate for continued child support.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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