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Parting of the Ways

According to Statistics Canada, the divorce rate in 2008 in this country – the last year statistics were compiled – was hovering around 41 per cent. This means that if the rate remains stable, roughly four out of 10 married couples are expected to divorce before their 50th wedding anniversary. It is closer to 50 per cent in the U.S., say experts at the San Diego Divorce Center. They also suggest it is much higher (up to 78 per cent) for some groups, such as celebrities, police officers and aviation professionals.

Many of the questions I get from people in the aviation industry are “family law” related. I wanted to take a few moments to discuss what is happening out on the west coast.
The B.C. government recently tabled legislation that will change the face of divorce in that province, and may well signal a change seen throughout the country over the next few years.  British Columbia’s new Family Law Act should become law in the next 12 to 18 months, replacing the current (1979) Family Relations Act.

After months of meetings with a blue-ribbon committee made up of government representatives and some of B.C.’s senior family law lawyers, the recommendations for change were debated and fine-tuned. To the government’s credit, they seem to have listened well.

So what is new? Well, for one, there is new language regarding custody and access for children. The term “parenting time” will replace, and is less threatening than, “access” and better reflects the current situation in many families throughout Canada. Moving away from language suggesting “ownership,” we will see “guardianship” replace “custody.”

Children are no longer the “primary” consideration when families break up – they should now be the “only” consideration. Watch for this area of the legislation to attract litigation. It is difficult at times, to separate what is best for the kids from what is best for the parent who has primary guardianship. Moving away from your ex with your kids is often where this issue first gets tested. You will continue to have rights when it comes to parenting time with your kids if they move, but certain steps may be required of you in order to enforce them.

One of the bigger changes deals with common-law relationships where, under the current legislation, they are treated differently with respect to the division of assets than married couples are. Married couples, after a period of time, can consider most things they have as “family assets,” as long as it can be shown those assets were used during the marriage. Not so for common-law couples, who must fight to get the same rights when dividing household goods, assets or finances.

The old legislative scheme can be viewed – quite simplistically – like this: if you are married, the courts will presume you intended to divide everything you owned after a breakup, and you have to make a claim in court in order to change that presumption. If you are in a common-law relationship, the courts presume you intended to keep what you brought in, and simply divide what you acquired during the relationship, or what grew from the investments over that same time.

Under the new law, common-law spouses – those who live in a marriage-like relationship for two years (or less if they have children together), will be treated the same as married couples with respect to the division of family assets. This will apply equally to same-sex couples. B.C. will lead the way as the first province in Canada to grant equal property rights to separating common-law spouses.

For the most part, the new law will move the focus from a “court-centred” approach to more of an “out-of-court,” negotiated approach. Mediation and Collaborative law will continue to be important, and Arbitration will be introduced; good news for everyone involved.

This legislation is long overdue, yet the success of the new Family Law Act will depend on how quickly lawyers and judges recognize the policy shift that underscores this legislation. Our current court-centred, adversarial approach does not work for most Canadians caught in the battlegrounds of divorce – regardless of whether they are celebrities, police officers or simply aviation professionals.

– with files from Georgialee Lang