#bobblaw

[bcfamilylaw]

A Brief Review of Family Law in 2013: the New Act

2013 brought about sweeping changes as a result of the replacement of the Family Relations Act with the Family Law Act in March 2013.  The new Act broadened the application of property provisions from married couples to both married and common law couples.  Changes also came to how property is defined and spouse's interests in it.  

The Act also reintroduced the idea of dispute resolution except that the Act makes the alternate court, not dispute resolution.  It is mandatory for parties and lawyers to consider resolution outside of court.  

There is also the term "family violence" which is very broad and considers the impact that it has on children, spouses and the process (whether court proceedings or the formation of an agreement).  

A number of other important parts of the Act make new waves as well.  Conduct orders, fines, penalties and process for ensuring disclosure are expressed in the Act to make it less burdensome to deal with the unwilling, unfair and uncooperative.

There are also the rejuvenated roles of parenting coordinators, counselors, divorce coaches and other role providers which without government funding are beyond the reach of the ordinary "jane" and "joe".  The words of the Act are great, but ultimately will depend on the availability of resources which at this point in time are scarce.

Only 2014 will tell how well the Act will impact family law including the people, the professionals and the children that are directly impacted by it.  This is particularly so given that the Act is still in its infancy.  Our courts are young in interpreting and applying many aspects of the new Act.  Lawyers and parties are in the same developmental stage. 

But as I have always been the view of time and again, it is not so much the game as it is the players (lawyers, judges, professionals, the parties and  government support).  There is not much sense having law when it has no effect; when it is not being applied or used as are its intended purpose and spirit.

Only 2014 will tell.

www.bobblaw.ca

[icbcadvice]

[icbcadvice]

[bcfamilylaw]

[icbcadvice]

A self-represented litigant cannot be held to the same standards as a professional lawyer in terms of compliance with court procedures and rules. That said, a litigant who chooses to represent him- or herself cannot ignore his or her responsibilities with impunity.

http://www.courts.gov.bc.ca/jdb-txt/SC/13/05/2013BCSC0560.htm

[sbobblaw]

[bcfamilylaw]

FRA or Divorce Act -- the difference it makes for Consent Orders!

It is fairly common for both the Courts and lawyers to omit to put their minds to stipulate in the draft of Orders which piece of legislation the Order is made - the Family Relations Act (BC) or the Divorce Act (Canada).  The omission can have implications on the parties as indicated in the BC Court of Appeal's recent decision:

The issue of whether the custody and support provisions of the Consent Order were made pursuant under the Divorce Act or the FRA is not merely an interesting academic exercise, but one with some practical consequences to litigants who may have to revisit those provisions in a subsequent proceeding. In this case, if the impugned provisions of the Consent Order were made under the FRA (which the father now contends) they are final orders and the mother had the legal burden of demonstrating a material change of circumstances to support a variation of those provisions. If, however, they were made pursuant to the Divorce Act, they are interim orders (as the order for divorce had not yet been granted) and the mother would have had no legal burden to establish a material change of circumstances in order to change the provisions.

[bcfamilylaw]

Child Support: do I have to disclose my current spouse's income?

It depends. 

Undue Hardship Claim:  Yes.  If you are obligated to pay child support AND claim that you are unable to pay because of “undue hardship” then YES – you must disclose your current spouse’s income if you are residing together.  If you claim undue hardship (e.g. I cannot afford to pay support because of high debt) then you are required to disclose “household income” which would include your current spouse’s income if s/he resides with you.  Then there is a household to household comparison of incomes.  A claim for undue hardship is a difficult claim to prove successfully. 

Special & Extraordinary Expenses:  Possibly.  If your ex applies for you to pay your portion of the child’s special and extraordinary expenses, there is a possibility that you may have to disclose all revenue available to you, including the income of your current spouse.  However, these are limited circumstances and even the availability of your current spouse’s income may have little bearing on the amount you pay for special and extraordinary expenses.  Special & Extraordinary expenses are different than basic or table support.  It is additional support for those expenses that are above and beyond basic child support.