Updated: Apr 10
Will clarify the law around pets, property and pensions to better meet the modern-day needs of separating couples
Starting now, lawyers may wish to advise their clients on the ways that proposed FLA amendments in Bill 17-2023 (Family Law Act Amendment, 2023) ("Bill 17"), including the transitional provisions, could impact their clients' positions regarding excluded property, pension and pets. Our thanks to Nancy Cameron, K.C. and other colleagues working out of the New Look Business Centre for bringing this best practices consideration to our attention.
Proposed change #1:
As described by the government, one proposed amendment "would make it easier to equitably divide property by preventing the use of the outdated principle of the 'presumption of advancement' to decide how property is divided" under the FLA. A 2016 government discussion paper describes the presumption of advancement and FLA property division concept in greater detail.
Bill 17's clause 3 adds a section that provides that certain common law rules are not to be applied respecting questions concerning spouses' ownership of property.
3 The following section is added:
Certain presumptions not to be applied
(1) The rule of law applying a presumption of advancement must not be applied in questions respecting the ownership of property as between spouses.
(2) The rule of law applying a presumption of resulting trust must not be applied in questions respecting the ownership of property as between spouses.
Clause 4 of Bill 17 provides that property that is excluded from family property remains excluded even if ownership is transferred from a spouse to the other spouse.
4 Section 85 is amended by adding the following subsection:
(3) If a property is excluded from family property under subsection (1), the exclusion applies despite any transfer of legal or beneficial ownership of the property from a spouse to the other spouse.
6 Section 96 is repealed and the following substituted:
Division of excluded property
96 The Supreme Court must not order a division of excluded property unless
(a) family property or family debt located outside British Columbia cannot practically be divided, or
(b) it would be significantly unfair not to divide excluded property on consideration of the duration of the relationship between the spouses and one or more of the following factors:
(i) a spouse's direct contribution to the preservation, maintenance, improvement, operation or management of the excluded property;
(ii) the terms of any agreement between the spouses respecting the excluded property, other than an agreement described in section 93 (1) [setting aside agreements respecting property division], including but not limited to terms respecting the transfer of the excluded property;
(iii) if the Supreme Court makes a determination under section 95 (1) [unequal division by order] respecting significant unfairness, the extent to which the significant unfairness cannot be addressed by an unequal division of family property or family debt, or both.
Proposed change #2:
Bill 17 includes updates to FLA sections that govern the division of pensions to bring them into alignment with the current practice of pension-plan administrators, as based on recommendations from a BC Law Institute report.
Proposed change #3:
If passed, the amendments will provide more guidance for parties and judges when determining how to address the ownership and possession of pets. The FLA will require consideration of factors such as each person's ability and willingness to care for the animal and the relationship a child has with it, as well as if there is a risk of family violence, the threat of cruelty to an animal, and more.
Bill 17's clause 24 sets out rules that apply respecting certain types of proceedings that were started before the coming into force of the amendments made by Bill 17 to the FLA.
Transition – pre-existing proceedings
24 (1) In this section, "pre-existing proceeding" means
(a) a proceeding, under the Family Law Act, respecting property division that was started before the date on which this Act receives Royal Assent, or (b) a proceeding, under the Family Law Act, to set aside or replace an agreement respecting property division that was made before the date on which this Act receives Royal Assent.
(2) Unless the spouses agree otherwise,
(a) section 81.1 of the Family Law Act, as enacted by this Act, does not apply respecting a pre-existing proceeding, and (b) sections 85 and 96 of the Family Law Act, as those sections read immediately before the date on which this Act receives Royal Assent, continue to apply respecting a pre-existing proceeding.
Wording for the-above summary includes excerpts from the following two sources:
Government news release: